Forrester v. Hauser Construction Co.

BROWN, J. The defendant Hauser Construction Company had entered into .a contract with the City of Portland to construct the headwords of the Portland-Bull Run water system, situate in the mountains at a considerable elevation and about five miles north of the Portland Railway terminal on the Bull Run Line. In effecting the execution of that contract, the defendant made and entered into the contract with plaintiffs above set out, which forms the basis of this action. Under their contract with defendant the plaintiffs undertook to gunite about 28,044 square feet of concrete. The term “gunite” originates from the fact that the coating placed upon the cement is projected thereon by a gun that casts cement, sand and water on to a surface by the use of compressed air. One of the engineers testified: “The term ‘gunite’ is a coined word. It was invented possibly for the lack of something better to distinguish it from ordinary concrete.” *227 A. C. Forrester, one of the plaintiffs, testified in his own behalf that they commenced work under the contract about two weeks previous to Wednesday, January 18, 1922, at which time the defendant Construction Company was completing the pouring of concrete in accordance with its contract with the City of Portland. As to undertaking- the performance of the contract for the defendant, he testified: “After we were on the site we prepared to dry sand and heat it and get the materials in place ready to operate. The next thing was to move the gun onto the far side of the river to cover the walls of the dam. * * The gun was moved over and we had the sand and cement transported * # and the pipeline laid to convey water, and the pipeline was laid to convey air 'to the gun, and we placed the gunite on the North side of the headworks. That was completed and we moved over to the South side. * * While we were on the South side, the temperature would fluctuate from about ten o ’clock in the morning-, from thirty on up to about forty, but we put the material on when the temperature raised above thirty-two. * * It was just at the beginning of the freeze, and the gunite, when we would shoot it on there, if it didn’t turn to ice it would stick on, but if it did turn to ice it would not stiek. * * We worked for several days on this South side under these conditions. # * The weather kept getting more severe and the frost penetrating deeper into the ground, and finally we had such a severe night the pipeline of the Hauser Construction Company froze up and we could not get any water and operate, and we waited for, I think it was, a day and it was thawed out and fixed up again. We worked another day or two, and finally it froze up completely and broke the pipe so that it could not be repaired. We were told to wait until the city had installed their pipeline which was of much larger area and a little more protected and it wasn’t worth while to patch up this old line they had laid for their construction purposes, and we laid off until the city’s line was *228 completed. * * I left one man ont there to pick our stuff together, to gather it up and get it in shape and cover it up so it would not snow on it. It snowed several nights. There was a foot of snow on. * * We moved into town and left our equipment ready to operate, with a whole shedful of dry sand. * *' It was all under cover. * * We left things there in first-class shape so we could continue the work when the weather moderated. We came back to town and in a few days I was called on the telephone by Mr. Bupert Hauser and told they were going to move their outfit in and wanted to know if we wanted ours in. I asked if they had settled with the city, completed their contract, and they said they had, the city was going to do the gunite work itself, * * and the city would come out there in the spring and finish it up. * * Then he asked me if I wanted the stuff moved in. I said, ‘Inasmuch as you have closed your contract with the city and yon have moved the air compressor in we won’t have any air. I can’t see anything but to move it in with your stuff.’ So they loaded it on with their equipment and moved off the job and left us holding the sack with our job just half completed, and ready and willing to go back and complete the job.” The allegations in the complaint averring promptness in the commencement and diligence in the performance of the contract constitute a mere averment of conclusions. The defendant was not prejudiced by the court’s ruling in denying its offer of proof designed to refute such conclusions, especially in view of the fact that the defendant was permitted to show, and did show, the specific date on which the plaintiffs commenced to perform their contract and the extent of such performance. Moreover, the time when plaintiffs were to commence performance of their contract depended upon instructions from defendant. The writing in evidence specifically provides that the defendant shall designate to plaintiffs “the time for your *229 starting the works at Bull Run.” Furthermore, it is not shown, nor is it pretended, that plaintiffs did not commence performance in obedience to such notice. Defendant complains because of the exclusion of certain testimony. We can see no injury one way or the other in the court’s permitting or refusing to permit Taylor to testify concerning the comparative time required to put on plastering by hand and by “guniting,” because that question was not within the issue for determination. The court did not commit reversible error in ruling upon the admissibility of the testimony. Defendant complains of the court’s refusal to instruct the jury as requested in writing by it. By the first instruction refused the defendant requested the court to charge the jury that the plaintiffs had only a reasonable time, in view of all the circumstances and conditions, within which to perform the gunite work under their contract with the defendant construction company. This is a proper statement of the law; hut coupled with it is a further statement that the court properly refused. As a part of the same instruction, the defendant asked the court to charge the jury that, if plaintiffs did not declare their intention and demand their right to complete the work, then, as a matter of law, plaintiffs abandoned the work and could not recover. This instruction was erroneous, in view of the testimony opposed thereto to the effect that the defendant repudiated the contract, refused to be bound by it, and declared that the City of Portland would do the gunite work. In Longfellow v. Huffman, 49 Or. 486 (90 Pac. 907), this court held: “A declaration by one party to a contract, made prior to the time fixed for performance, that he will *230 not comply with such contract, if not withdrawn, may dispense with or excuse an offer to perform by the other party before bringing his action: 1 Beach, Modern Law, Contracts, § 411; Howard, v. Daly, 61 N. Y. 362 (19 Am. Rep. 285); Bissell v. Balcom, 39 N. Y. 275. * * ‘It is well settled,’ says the Supreme Court of Illinois, ‘that, where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or, he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance sue and recover, under the contract; or, he may treat the repudiation as putting an énd to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing. In the latter case the contract would be continued in force for that purpose. "Where, however, the injured party elects to keep the contract in force for the purpose of recovering* future profits, treating the contract as repudiated by the other party, in order for such recovery, the plaintiff must allege and prove performance upon his part, or a legal excuse for nonperformance.’ Lakeshore & M. S. Ry. Co. v. Richards, 152 Ill. 80 (38 N. E. 777, 30 L. R. A. 33).” This doctrine was followed in Taylor v. Tripp, 97 Or. 611 (191 Pac. 1054). The next instruction refused by the court relates to the act of the defendant company in removing its equipment from the camp to Portland. This instruction omits intent as a material element actuating the defendant company in the removal of its equipment, and is not proper in the light of the Forrester testimony opposed thereto. The conflict in the evidence made a question of fact to be determined by the jury from the evidence and the surrounding circumstances. *231 The next instruction rests upon the proposition that, if the defendant company had reasonable'cause to believe that plaintiffs had abandoned the gunite work, then the company was justified in treating the contract as at an end without taking into consideration the absence of any act or conduct upon the part of the plaintiffs causing such belief. The defendant then requests the court to instruct the jury that its act in removing the equipment from the camp =did not constitute a breach of the contract if it could, within a reasonable time, have furnished plaintiffs with air, water, sand and cement, as provided therein. The proposed instruction ignores the element of willingness on the part of the company to furnish the things specified. That the company could have furnished the air and the material, we have no doubt. But that is beside the issue. The question involved concerns the company’s willingness, not its ability. Did the plaintiffs by their act manifest an intention not to fulfill the substance of the contract entered into, or, was the failure to perform due to the action of the defendant -in removing its air compressor as claimed by the plaintiffs? Such were the questions for determination at the trial of this case. The facts are disputed. Plaintiffs contend that defendant’s removal of its air-compressor was the primary cause of their failure to perform, and defendant is equally certain that plaintiffs’ failure was due to their inexcusable negligence in not undertaking the performance of their contract at an earlier date so as to avoid the freezing weather. So, as a matter of law, a conclusion cannot be pronounced one way or the other as defendant would imply in its instructions *232 requested and refused. -The defendant was entitled to have its theory of the case presented to the jury with proper instructions, but such-instructions should not assume as true controverted facts. The question of abandonment was for the jury. It is only when the record discloses facts without conflict that the question is one of law. The record disclosing no reversible error, this case is affirmed. Aeeirmed. McBride, C. J., and Bean and Belt, JJ., concur.