Portland v. O'Neill

BEAN, J. The claim of appellant is: First, that the rental of equipment within the meaning of the statute constitutes neither labor nor material and is therefore not within the bond: second, that if re [166] covery can be had it must be limited to the time the equipment was actually used as distinguished from the time it was retained. 1. No bill of exceptions' is contained in the record. Therefore the testimony is not before us. As submitted on behalf of plaintiff, the case comes to us upon the complaint and findings: Miller v. Head Camp, 45 Or. 192 (77 Pac. 83); Farrell v. Oregon Gold Co., 31 Or. 463 (49 Pac. 876). Defendant contends that the facts thus set out do not support the judgment. For the basis of the action we turn to the complaint. It will be observed that the pleading shows that the contractor rented the pile driver for the prosecution of the work at the agreed rental of $8 per day, and that he “retained” it for fifty-seven days. There is no statement therein that the equipment was used in the construction, or in any way for the prosecution of the work. In so far as that pleading discloses, a lease of the pile driver may have been executed and possession taken by the contractor and the apparatus never taken upon the works or used in any way in furtherance of the undertaking embraced in the contract and bond. 2. In following the federal cases pertaining to the expenses of machinery and means used by such a contractor who has furnished a bond provided for by the statute, where the energy procured has entered into the prosecution of the work, we have adopted a liberal rule in the construction of the statute: See Multnomah Co. v. United States Fidelity & Guaranty Co., 92 Or. 146 (180 Pac. 104); Multnomah Co. v. United States Fidelity & Guaranty Co., 87 Or. 198 (170 Pac. 525, L. R. A. 1918C, 685), and cases there cited. In the latter case this court said at page 206 [167] of 87 Or., at page 527 of 170 Pac. (L. R. A. 19180, 685): “The line of demarcation must be drawn between labor and material furnished a contractor which are covered by such a bond and those without the pale of such an undertaking by taking into consideration the service and material in the particular case.” 3,4. The statute requiring the bond which is incorporated into the undertaking concerns every approximate relation of the contractor to the work which he has contracted to do: Multnomah Co. v. United States Fidelity & Guaranty Co., 87 Or. 198, 204 (170 Pac. 525, L. R. A. 1918C, 685); Am. Surety Co. v. Lawrenceville Cement Co. (C. C.), 110 Fed. 717, 721. It is the labor and material supplied for the prosecution of the work which is protected, and not some obligation incurred by the contractor which dbes not approximate the construction contracted to be done: United States v. Baltimore Const. Co., 48 Pa. Super. Court, 502. This is not a question between the plaintiff, who was lessor of the equipment, and the contractor O’Neill, the lessee. The statute should not be interpreted so as to permit a contractor on public work to lease an equipment and use it for a short time or not at all, abandon the work without returning the rented apparatus to the lessor, and allow the rental to accumulate for a long time, and be counted as an expense protected by the statute and bond. Such is not the letter or spirit of the law. If the complaint in this case is upheld a claim like the one suggested could be made. The facts shown by the complaint are not sufficient to support the judgment. 5. The. findings of the court go further than the complaint and state that the contractor “retained [168] and used” the pile driver for 57 days. The defendant surety by its answer raised an issue as to the rental of the equipment. The proof is not before us. It is well settled that the findings must be responsive to the issues, as stated by Mr. Justice Burnett in Annand v. Austin, 86 Or. 403, at page 410 (168 Pac. 725, at page 726), referring to findings of facts made by the court in a law action: “Her averments having been challenged by the reply, it was incumbent upon her to prove them as laid, for it' is hornbook law that the allegations and proofs must agree. It is equally axiomatic that the verdict must be responsive to the issue.”' A party must recover, if at all, upon the claims asserted in his pleadings, and not upon other rights or issues that may appear in the evidence., Upon the trial of the cause by the court without a jury, findings outside of the issues made by the pleadings are nullities and will not support a judgment, not being responsive to the issues: Eastman v. JenningsMcRae Logging Co., 69 Or. 1, 8 (138 Pac. 216, Ann. Cas. 1916A, 185); Boothe v. Farmers’ Nut. Bank, 47 Or. 299 (83 Pac. 785); Male v. Schaut, 41 Or. 429 (69 Pac. 137); Newby v. Myers, 44 Kan. 477 (24 Pac. 971). Such findings will not supply necessary allegations required in the pleadings: Ferguson v. Reiger, 43 Or. 505 (73 Pac. 1040). We are forced to believe that the averment of the complaint was not wanting in the respect noted by reason of oversight. We think, taking the findings in the light of the complaint, they fairly mean that the contractor “used” the pile driver for a portion of the 57 days and “retained” it for the balance of that time. The evidence is not here so that we cap. determine what use was made of the equipment in [169] the promotion of the contract work. It is asserted in appellant’s brief that, according to the evidence, the- pile driver was used only 11 days. The judgment of the lower court will be reversed, and the cause remanded, with permission for the plaintiff to apply to that court for leave to amend its complaint, and for such further proceedings as may. be deemed proper, not inconsistent herewith. Reversed and Remanded. Rehearing Denied.