Young v. Borzone

— 7 — Tlie opinion of tlie court was delivered by White, J. This is a suit in equity to foreclose a lien on certain lots in the city of Seattle for grading a street in front of such lots. Respondent moves the court to strike from the record and files the brief of the appellants, on the ground that the findings of fact and conclusions of law requested by appellants are not printed in the brief of the appellants; and respondent further moves the com t that, on granting the motion to strike the brief, the appeal be dismissed. The respondent further moves the court that the judgment of the lower court be affirmed, for' the reason that the exceptions of appellants to the findings of fact and conclusions of law do not specifically point out the findings complained of as erroneous. Sub-division five of Rule 8 provides that in all equity causes and actions at law tried l>y the court without a jury the party appealing shall print in his brief the findings of fact, with the exceptions thereto, etc., and also- such findings as the lower court was requested to make, with the refusal .and exceptions in case any error or contention sliali be based thereon. The opening brief of the appellants fails to comply with subdivision five of Rule 8. The reply brief, however, complies with the same. This provision of the rule is for the benefit of the court. Ro injury can result to the respondent from failure to comply with it. Respondent is advised by the record in the case and the assignment of errors as to the points that will be urged on the appeal for a reversal. The printing of the findings, etc., in the reply brief cures the omission. The last ground urged is not well taken. At the time of signing’ the findings, the record shows that the appellants took-exceptions in the following form and manner, which were allowed by the court: — 8 — “The defendant in open court at the time the court signed the foregoing findings, except to each and every part of each and every of the foregoing findings of fact and conclusions of latv, that is to say: To the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 15fch findings, to the 1st and 2d conclusions of law, — which exceptions, and each of them, are allowed, and entered in the record in this action.” This was sufficient, under the rule laid down by this court in Ranahan v. Gibbons, 23 Wash. 255 (62 Pac. 773). The motions are therefore denied. The respondent brought this action to foreclose a lien on certain lots of the appellants fronting on Roy street, in the city of Seattle, and to recover $185.05, secured by such lien for the grading of part of said street. At the instance and request of George Kinnear, an ordinance was passed by the city council of Seattle granting permission to Kinnear, defendant Frank Borzone, and three other persons named therein, to improve Roy street between Second avenue West and Kinnear Park, at their cost and expense, by grading and sidewalking said street under the direction of the city engineer. Under and pursuant to said ordinance the city engineer prepared plans of and specifications for said proposed improvement. These plans and specifications were partly in writing, and were set forth in a printed form used by the city of Seattle in advertising for proposals for the improvement of streets. Portions of the printed form were stricken out, the remaining portions contained many stipulations applicable to contracts made directly with the city, such as: “Material necessarily wasted from the cutting shall be disposed of as the city engineer may direct, no extra allowance being made for hauling or disposing of the same unless the distance hauled exceeds one thousand (1,000) feet. One cent per cubic yard will be paid for every one — 9 — hundred (100) feet so hauled over and above one thousand (1,000) feet for public use.” “The contractor shall not assign or transfer the contract for this improvement or sublet any of the work embraced in it, without the written consent of the board of public works.” “The work embraced in the contract for this improvement shall be begun immediately after written notice so to do shall have been given to the contractor by the board of public works, and carried on regularly and uninterruptedly thereafter (unless the said board shall otherwise, in writing, specially direct) with such force as to secure its completion within ninety (90) days thereafter; the time of beginning, rate of progress, and time of completion being essential conditions of said contract. And if the contractor shall fail to complete the work by the time above specified, the sum of twenty dollars per day, for each and every day thereafter until such completion, shall be deducted from the moneys payable under said contract.” The wTords “ninety (90)” before “days” was inserted in a blank space left in the printed form. Under the head, “General Description of Work and Materials,” is the following, all being in writing after the words “It shall consist of”: “The improvement therein described is authorized by Ordinance Ño. 4825 of the City of Seattle, and shall conform to the requirements thereof. “It shall consist of clearing, grubbing, grading, parking, surfacing, sloping, constructing sidewalks, box ’ drains, crossings and bulkhead in the portion of Eoy street above described and the approaches thereto. “The waste material from the excavation shall be deposited as follows: 1st. In Eoy street where required for embankment in the district included in this improvement. 2d. In the projections of the Fifth and Fourth avenues West and in Third avenue West from Eoy street south toward Mercer street, as directed by the city engi — 10 — neer. Any clearing and. grubbing necessary in any of Lire said avenues shall be done or paid for outside of this contract, by the owner or owners of property abutting thereon. 3d. On the property on the south side of Roy street as may be permitted by the owners thereof. “The right to waste said surplus material shall be exercised in the order designated as above.” The following typewritten agreement was prepared m duplicate, and signed by the property owners and Had-field & Roberts: “An agreement made and entered into this 18th day of May, 1899, by and between Hadfield and Roberts, parties of the first part, and Geo. Kinnear, Violet E. Parker, Erank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons and D. E. Decater, the parties of the second part. Witnesseth: “Said Hadfield and Roberts agree to clear, grub, sidewalk and otherwise improve Roy street from Second avenue West to the east side of Sixth avenue West or Clover street, according to the plans and specifications of the city engineer and under his directions, as follows, to-wit: All clearing and grubbing in said street for $95.00. Moving all earth, (18) eighteen cents per cubic yard. Sidewalks, culverts and box drains, and bulkheads, including nails and sifikes ($11.05) eleven dollars per M. feet, B. M. “Upon the completion of said improvements and am ceptance by the city engineer, said Geo. Kinnear, Violet E. Parker, Erank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons and E. D. Decater agree to pay to said Hadfield & Roberts as per prices above mentioned, each in proportion to his ownership and interest in the property abutting and proximate to said Roy street and in said grade district liable by city law to pay for said improvements on said street as the same shall be completed and distributed by the city engineer. (Description of Property.) [Here follows description of the property and opposite the same the name of the owner. One of the descrip — 11 — tions being: West half of vacated Meadow street, and Block 23, G. Kinnear’s Addition, opposite which was the name Frank Borzone.] “Witness our hands and seals the day and year above written.” ...............(Seal.) ............... (Seal.) ...............(Seal.) ............... (Seal.) The reason for preparing this agreement in duplicate was that some parties lived at one place, and some at another. One copy was sent in one direction and one in another, for the signature of the owners. These two copies were introduced in evidence. The copy signed by the appellant Frank Borzone contains the following interlineation in writing after the description of the property: “Each party hereto to pay only such part of the total cost as his foot frontage bears to the total frontage improved in said street.” The other copy signed by some of the owners, contains the following interlineation after the words “distributed.by the city engineer”: “To be completed September 1, 1899.” The respondent pleaded that Frank Borzone and Louise Borzone were husband and wife; that they were the owners as community property of Lots 1, 2, 3, Block E, of Kinnear’s Park Addition to the City of Seattle; that said lots are the same property described in the contract hereafter mentioned as Block 23 and the east half of Meadow street, in Gr. Kinnear’s Addition, being replatted under such description after the date of such contract. These allegations are not denied in the answer. The respondent further pleads that on the 18th of May, 1899, one Hadfield & Koberts, co-partners on the one part, and Geo. Kinnear and the others, mentioning them by name, who had signed the two duplicate agreements, including Frank Borzone, on the other part, entered into an agreement, partly written and partly — 12 — typewritten, for having a portion of Boy street, in Seattle, Washington, cleared, gruhhed, graded, and having sidewalks, culverts, box drains, bulkheads built and constructed thereon under the supervision of the office of the city engineer of the city of Seattle. The respondent sets forth in full the duplicate agreement we have referred to, without the interlineations we have pointed out, as the agreement made between the respondent and the appellants. He then avers that Hadfield & Koberts, by written assignment, assigned and transferred the contract to John Kahlberg; that Kahlberg duly performed the work and improvements and completed the same about the 10th day of April, 1900; that Trank Borzone and all others to said contract had actual knowledge of such assignment at the time of the assignment, and that Kahlberg was performing said agreement under such assignment and that they did severally and together with the city engineer of the city of Seattle direct said John Kahlberg in regard to the manner of performing said work and grading said street, “and of disposing of and distributing the waste earth therefrom ” and they and each of them, by their conduct and acts, gave the said Kahlberg reason to believe, and he did therefore believe, that they, including the said Borzone, accepted him as the person entitled to do said work. It is further alleged that the city engineer of Seattle did, according to the terms of the contract and the city laws, compute, distribute, and charge for on behalf of the said John Kahlberg against the property mentioned in said contract the amounts chargeable on each of said tracts, and that the amount so charged againsc the appellants’ property was $185.05; that the above claim has been assigned to the respondent; that respondent made and filed the notice of lien, which notice is pleaded in full. There is also an allegation that $75 is a reasonable — 13 — attorney fee, etc. The prayer is for judgment for $185.05 and costs, attorney’s fee, etc., and a decree of foreclosure of the lien, and a sale of the property to pay the same. The appellants, in their answer, specifically deny all these allegations of the complaint, “except that the city engineer made some sort of assessment, and defendants have no knowledge or information sufficient to form a belief.” As a first affirmative defense, the defendants pleaded that the contract made between Hadfield & Roberts and the defendants and others, concerning the subject matter contained the interlined words, “Each party hereto to pay only such part of the total cost as his front footage bears to the total frontage improved in said street,” and the interlined woi’ds, “To be completed September 1, 1899;” and also that the contract included all matters mentioned in the written form on which the city engineer set forth the plans and specifications, including the clause against assigning and transferring the contract, including the ninety day clause in which the work was to be completed, and the stipulation for liquidated damages at the rate of twenty dollars per day. The transfer of the contract is alleged to have been without the consent of the board of public works, and without the knowledge or consent of the defendants. It is further alleged that the contract as pleaded by the defendants was the only contract made with Had-field & Roberts for the work on Roy street set forth in the complaint, and that all the work performed in and about Roy street set forth in the complaint was done under the contract as pleaded by the defendants, and not otherwise. It was further alleged that: “On the day said contract was made and on the day said work thereunder was commenced, the defendant’s said block of land was on the south side of said Roy street, and said Hadfield & Roberts — 14 — and the said Kahlberg, and each of them, have neglected and failed to complete said contract, in that they did not deposit the surplus or waste material to the east, south and west of the dwelling on said block as agreed and directed, but in violation of said contract and of defendants' rights, did deposit and pile the same together with stumps in one heap on said block and north of said dwelling, to a height of several feet above the adjoining sidewalk on the south side of said street, to the defendants’ injury and damage of two hundred dollars.” As a second defense, defendants pleaded that Iiadfield & Roberts and Ivahlberg failed to complete said work in time and manner agreed, and have not yet completed the same, to the defendants’ injury and damage in the sum of twenty dollars per dav, or a proportionate share thereof, as liquidated damages for each and every day since the first day of September, 1899, ninety days after the work was alleged to have been commenced. The third defense was that, if the work had been completed as contracted for, the amount payable thereunder by the defendants would not exceed one hundred dollars. The fourth defense was that Iiadfield & Roberts and Ivahlberg had failed to complete the contract according to the terms thereof, in that the grading and construction of the bulkhead at the northwest corner of the defendants’ land was so defectively and negligently done that the bulkhead and the earth back thereof is giving way, to the defendants’ injury and damage in the sum of fifty dollars. The fifth defense was that there was a defect of parties, in that I-Iadfield & Roberts o and Kahlberg were not made parties. The sixth defense was that the plaintiff knew of the contract, had it in his possession, knew that the work had not been done in accordance therewith, and that the work had not been done as alleged in the lien; that prior to the commencement of the action, “the defendants — 15 — tendered unto and lianded out to the plaintiff at his office in Seattle the sum of one hundred and forty dollars in gold coin of the United States, in full of all claims and demands arising under or growing out of said contract and the work done and the material furnished thereunder and in full of plaintiff’s claims and demands against said defendants, which tender was without just cause peremptorily refused and rejected, and defendants now bring into court the identical money so tendered.” The seventh defense is an attempt to plead mere conclusions of law; that is, that § 5902 of Ballinger’s Code, under which the lien is claimed, is unconstitutional, in that by it a person is deprived of his property without due process of law. The respondent, by way of reply, denies that the specifications prepared by the city engineer were any part of the contract, and reaffirms that the contract set forth in the complaint is the only contract, and he denies the allegations as to placing the earth on the lots, and the damages alleged. The respondent also denies the second, third, fourth, fifth and seventh affirmative defenses, and all facts except the tender alleged in the sixth affirmative defense. There are fifteen assigned errors, but they may be grouped under four heads: First. Is the statute unconstitutional providing for liens on real property in favor of any person who, at the request of the owner improves a street in front of his property? Second. What are the papers that constitute the contract, what is the contract, and what is the amount due thereon ? Third. The right to claim liquidated damages for the breach of the contract. Fourth. The right to counter-claim for damages under the pleadings for placing earth on the lots of the appellant. The statute under which the lien is claimed by respondent is as follows : — 16 — “Any person who, at the request of the owner of any real property, his agent,' contractor or sub-contractor, clears, grades, fills in or otherwise improves the same, or any street or road in front of or adjoining the same, has a lien upon such real property for the labor performed, or the materials furnished for such purposes.” Bal. Code, § 5902. The grading of a street in front of property is an improvement of the property. Ordinarily, such work is done by the municipality, and in such cases a proportionate cost of the improvement according to benefits, under the local assessment plan, may be charged against the property. Where the individual owner sees fit to do the same work by permission of the city, it is none the less an improvement to the abutting property, and we see no reason why the lien given by the express words of the statute in such cases should not attach in the same manner and to the same extent as where the improvement is placed directly on the lot in place of appurtenant to it. Of course, if the work is done by the city under the local improvement plan, or under its general power, no lien will attach under the laws relating to the liens of mechanics and material men. But where the work is done under a contract made directly with the owner, the lien is given by statute. The mere fact that the improvement benefits the public as well as the owner is no reason for holding that the property improved shall not be subject to a lien for the cost of the improvement. Under the typewritten paper, of date of May, 1899, signed by Hadfield & Roberts and the owners of the property abutting on Roy street, “Hadfield & Roberts agree to clear, grub, grade, sidewalk and otherwise improve Roy street.” “All clearing and grubbing in said street for $95.00. moving all earth, (18) eighteen cents per cubic yard. Sidewalks, culverts and box drains and bulkheads, including — 17 — nails and spikes ($11.05) eleven dollars per M. feet, 13. 11.” The things to he done, and for which pay was to he exacted, were clearing, grubbing, building sidewalks, culverts, box drains and bulkheads, and grading the street and moving the earth necessary to such grading. The typewritten paper says these things that we have enumerated were to be done “according to the plans and specifications of the city engineer and under his- direction.” The term “plans and specifications,” here used, refers to the working details. There was no intention by the parties signing this paper to confer on the city engineer authority to fix the time in which the work was to be completed, or extra compensation for the work, or to prescribe a penalty for liquidated damages, or anything else, save working details and plans therefor. So far as the plans and working-details are concerned, we think they became a part of the contract. One of the working details was that: “The waste material from the excavation shall be deposted as follows: 1st. In Roy street where required for embankment in the district included in this improvement. Second. In the projections of Fifth and Fourth avenues West and in Third avenue West from Roy street south toward Mercer street, as directed by the city engineer. Any clearing and grubbing necessary in any of said avenues shall be done or paid for outside of this contract, by the owner or owners of property abutting- thereon. 3d. On the projterty on the south side of Roy street, as may be permitted by the owners thereof. “The right to waste said surplus material shall be exercised in the order designated as above.” The provisions in the paper prepared by the city engineer when preparing the plans and working details, that the contractor should not assign or transfer the contract without the consent of the hoard of public works, and if the contractor should fail to complete the work within — 18 — ninety days, the sum of twenty dollars per day for each and every day thereafter until completion should be deducted from the moneys payable under the contract, were not a part of the contract contemplated by the parties signing the typewritten paper, as they were not a necessary part of the plans and working details. This view is borne out by the testimony of Mr. Kinnear, who appears to have managed the business on the part of the property owners. The appellants claim that the two duplicate typewritten papers and the paper prepared by the city engineer were attached together, and, as thus attached, formed the contract. Mr. Kinnear testified that they were not attached to each other, but that all the papers were kept in one envelope, and that the paper prepared by the city engineer was not regarded as part of the contract. This testimony means that the paper as an entire thing was not a part of the contract. There is no attempt to show that the working details and plans were not a part of the contract. The agreement signed by the parties expressly provides that such plans were to be a part of the contract. So much of the paper drawn up by the city engineer as disclosed these plans and details was admissible as proof of such plans, and, when proven, such plans entered into, and by the express provisions of the agreement signed by the parties became a part of, the contract. The court, over the objection of the appellants, to which proper exception was taken, excluded the paper prepared by the city engineer, showing these plans, and that one of the details was that the waste material from the excavation of the street should be deposited on the property on the south side of'Hoy street, as might be permitted by the owner. The appellants sought by the first affirmative defense to show that this earth was not deposited as directed by the appellants, but that it was heaped up together with stump3 — 19 — in one pile on the property, and that they were damaged thereby in the sum of two hundred dollars. This matter constitutes a counter-claim, and is pleaded as a defense under § 4835, Bal. Code. Even if we are in error in holding that the paper prepared by the city engineer was admissible for any purpose, yet the facts pleaded constituted a counter-claim, for they grew out of the transaction set forth in the complaint. The attempt was made to show by the witnesses Borzone and Hughbanks, that Kahlberg agreed to put the surplus earth on appellants’ land on the east, south and west sides of the dwelling house on said land; that he failed to do so, and piled it up in one pile, as alleged in the answer; and that the appellants were damaged thereby in the sum of fifty dollars, and that it would cost fifty dollars to spread it around upon the east, west and south sides of the house. All this evidence was excluded, and the ruling of the court properly excepted to. We think the evidence was proper. There being no facts in the record from which this court can estimate the damages so claimed, the judgment of the court for this reason must be reversed. It may be conceded that under the interlineation in one of the typewritten agreements the work was to be completed September 1, 1899, but no facts are pleaded to show that any damages accrued to appellants by reason of such failure. The second defense is an attempt to claim liquidated damages at the rate of twenty dollars per day. But we have held that the part of the paper prepared by the city engineer providing for such damages was not any part of the contract entered into by appellants and Hadfield & Roberts. The third defense amounts to no more than a denial. As to the fourth defense, there is no evidence to support the same and no exceptions as to the ruling of the court. All parties necessarv to the complete determination of the — 20 — action, were parties to the same, and there is nothing to support the fifth defense. The seventh defense is a mere conclusion of law, and we have already disposed of the matters claimed as a defense adversely to the appellants. The tender of one hundred forty dollars, as pleaded in the sixth defense, does not preclude the appellants from showing damages under the first defense, to the amount of $45.05, the balance claimed by the respondent. The tender simply admits that under a contract made by the appellants with Tladfield & Roberts, and assigned to Kahlberg’, and by Kahlberg to the respondent, Kahlberg improved Roy street in the manner alleged in the complaint, and that for such work they are indebted to the respondent in the sum of $140. They continue the tender made before the action was commenced, and bring the money into court in connection with their special plea as to what the contract was, and in connection with their special defenses, and the tender simply admits that under the contract, as they plead it in connection with their defenses, there is but $140 due from them for the improvement of the street to the respondent. By such tender they admit some kind of a contract as alleged, and they cannot deny, after making such a tender, that any contract was made by them with Tladfield & Roberts for the improvement of the street, or that it was assigned to Kahlberg, and by him to respondent, or that the amount due thereon is one hundred forty dollars. Hinds v. Cottle, 143 Mass. 310 (9 N. E. 654) ; Simpson v. Carson, 11 Ore. 361 (8 Pac 325) ; Cox v. Parry, 1 Durnford & E. (Term R.), 464; Spalding v. Vandercook, 2 Wend. 431; Davis v. Millaudon, 87 Am. Dec. 517. The method of the computation of assessment of cost of work, as stated in the duplicate typewritten agreement, was that each property owner, upon the completion of Hie — 21 — improvements, was to pay “in proportion to his ownership and interest in the property abutting and proximate to said Roy street, and in said grade district liable by city law to pay for said- improvements on said street as the same shall be completed and distributed by the city engineer.” George Cotterill, the assistant city engineer, testified that' the computation of $185.05 as the amount due from the appellants under the contract was the amount as ascertained by the city law; that the computation was made on the front footage plan; that identically the same result would be obtained computing under the interlined words, “Each party thereto to pay only such part of the total cost as his front footage has to the total frontage improved in said street.” The' addition of these words, then, in no way altered the contract as originally drawn. After the contract ivas made, and before the work was completed, Kinnear and the appellants replatted their land on Roy street, so that the property owned at the completion of the work by the appellants was described as Lots 1, 2, 3, in Block E. of Kin-near’s Park Addition, and it is admitted by the pleadings that this description covers the same property described in the contract as Block 23 and the east half of Meadow street in G. Kinnear’s Addition. The computation was made on the basis of the frontage of said Lots 1, 2 and 3, Block- E, Kinnear’s Park Addition. We think the computation on this basis was correct. The computation was to be made at the completion of the work on the property then owned fronting on the street. The testimony is to the effect that the assessment, $185.05, as the amount the appellants were to pay, was correct under the contract. That a mistake was made and that Mr. Kinnear j)aid $175 more than his share. We cannot see how the mistake made against Mr. Kinnear should inure to the benefit of the appellants. Kinnear may have the right to recover back — 22 — the money paid hy mistake. When the appellants ask to have $14.80 hack, the proportion of the said $175 credited on the assessment of $185.05, they are asking for something not theirs hy the contract. Under the cóntract they were to pay snch part of the total cost as their front footage bore to the total frontage improved. The testimony shows that was $185.05. Ho error was committed in refusing to deduct the sum of $14.80 from said amount. Objection was made to the lien notice. This notice states the time of commencement and cessation of performing the work and furnishing the material, the name (John Kahlberg) of the person who performed the labor and furnished the material, and that the same was at the request of Frank Borzone. It contains a description of the property charged with the lien sufficient for identification. It states the name of the reputed owner as Frank Borzone. It states the amount for which the lien is claimed as $185.05. It, in addition, gives a general description of the work done, and states the value of this work was $185.05. It states that John Kahlberg, by an assignment in writing, duly assigned the claim and his right to claim a lien to M. H. Young. The notice was properly verified. We think the notice a full compliance with § 5904, Bal. Code. The statement that one performed labor, etc., at the request of another is equivalent to saying that he was employed hy the other. The evidence is sufficient in this case to show that the appellants knew that Kahlberg was doing this work as the assignee of Hadfield & Roberts; besides, the tender pleaded admits that fact. The law allows the assignment of such a contract as was made between the appellants and Hadfield & Roberts (§ 4835, Bal. Code) ; and when the assignee, with full knowledge of, and without objection from, the contracting parties, performs the labor contracted to be performed, he must he held, under — 23 — the liberal rule of construction which must prevail when construing the lien law, as having been employed to do the work or furnish the material. The record shows that by order of the court the respondent drew down the $140 tendered. Under §4835, supra, the appellants could plead in defense the counter-claim set up in the first affirmative defense. The court erred in excluding testimony, as we have indicated in this opinion, as to the damages relative to placing the earth and stumps on the lots of the appellants, as claimed in the first affirmative defense. For that reason the judgment is reversed, with instructions to the court below to proceed with the cause so far as to ascertain such damages. If such damages are equal to or exceed $45.05, the defendants to recover costs; otherwise, the plaintiff to have a decree of foreclosure of his lien for the amount due him over $140, with costs, with such attorney’s fees, not exceeding twenty-five dollars, as the court below may allow. Appellants to recover their costs on this appeal. Keavis, O. J., and Andees, Dunbab, Mount, Fulleeton and Hadley, JJ., concur.