Piper v. Murray

MR. JUSTICE SMITH delivered the opinion of the court. This action was begun in Park county to recover the sum of $1,694.37, balance alleged to be due for material furnished and — 236 — labor performed upon the Hunters Hot Springs hotel and natatorium, under a written contract with the defendant Murray, acting ,as agent for the defendant, The Monida Trust, a corporation. The cause was tried to the district court, sitting with a jury. A verdict for $1,200 was rendered in favor of the plaintiffs. From a judgment in the amount of the verdict and an order denying a new trial, the defendants have appealed. The complaint, after setting forth the contract showing that “payments shall be made only upon certificate of the architects,” alleges that “plaintiffs have furnished all the materials and performed all the labor mentioned in said contract to be-by them furnished and performed in accordance with the terms thereof, and have in every respect faithfully performed all the conditions of said contract on their part, and all of said work was completed on the 3d day of August, 1909.” It is then further alleged that the sum of $1,694.37 remains due and unpaid, and “that plaintiffs have not secured the certificate of the architects authorizing the final payment upon said contract as required by the terms thereof, but have made repeated demands upon them for such certificate, and said architects have refused the same, not because of any fault of plaintiffs, but for the reason that defendant Murray has started suit against them, has made payments to plaintiffs without their certificates and without their knowledge, and has practically taken the matter out of their hands. ’ ’ 1. It is contended that the complaint does not state facts sufficient to constitute a cause of action, for the reason “that it was necessary for plaintiffs to allege and prove the issuance of the certificate, or show that it was waived by defendants, or withheld by collusion between the architects and the defendants, or [1] fraud of the architects.” We think, however, that the complaint sufficiently shows that the certificate was withheld arbitrarily, or at least for some cause over which the contractors had no control, and such showing is all that is necessary. (Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280; McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428; 6 Cyc. 88; Windham v. Independent Tel. Co., 35 Wash. 166, 76 Pac. 936; Halsey v. — 237 — Waukesha Springs Sanitarium, 125 Wis. 311, 110 Am. St. Rep. 838, 104 N. W. 94; Dyer v. Irr. Dist., 25 Wash. 80, 64 Pac. 1009; McConologue v. Larkins, 32 Misc. Rep. 166, 66 N. Y. Supp. 188; Neagle v. Herbert, 73 Ill. App. 17; Bannon v. Jackson, 121 Tenn. 381, 130 Am. St. Rep. 778, 117 S. W. 504; Michaelis v. Wolf, 136 Ill. 68, 26 N. E. 384; Schmidt v. City of North Yakima, 12 Wash. 121, 40 Pac. 790; Bentley v. Davidson, 74 Wis. 420, 43 N. W. 139; Byrne v. Sisters of Charity, 45 N. J. L. 213.) 2. Contention is made that the evidence is insufficient to sustain the verdict: First, as we understand it, because plaintiffs failed to show a substantial compliance with the terms of the contract on their part; and, second, because the competent evidence in the record, as distinguished from that which is incompetent and irrelevant, discloses the fact that they have been fully paid. First. We think the court properly submitted to the jury the question whether plaintiffs’ part of the- contract was substantially performed. Second. We agree with appellants on this point. It is alleged in the complaint that the contract price was $70,000, upon which the sum of $68,305.63 has been paid, leaving a balance due of $1,694.37. There is no word of extras in the pleading. The record shows that appellants have paid the sum of $77,402.18 on the contract. To offset this apparent overpayment of $7,402.18, plaintiffs undertook to show that they furnished extra work and material to the amount of $9,096.55, and had applied to the payment of this sum certain of the moneys paid by appellants under the contract. Under the head of “extra work,” the specifications attached to the contract provided : ‘1 The owner reserves the right to make any changes whatever, either in the quality or quantity of the work or materials that he may think fit, and the value of the said change or changes, either more or less, must be added to or deducted from the face of the contract. Nothing shall be considered an extra, unless it is agreed upon in writing before said extra work is done, and signed by the owner and contractor and certified to by the architects ; and nothing shall be considered as extra work unless consequent upon some specific change in the plans or specifications. No change in the plans or these specifications can be made with — 238 — out the written order of the architects with the approval of the owner. ’ ’ In the case of Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280, this court quoted with approval excerpts from the following cases: Russell v. Da Bandeira, 13 Com. B., N. S., 149, and Abbott v. Gatch, 13 Md. 314, 71 Am. Dec. 635. The doctrine laid down in those cases is that, where the contract provides that [2] no extra charges shall be made unless there shall be an order in writing fixing the price, there can be no charge for extra work, no matter what it may be, whether alterations in the plan or mode of doing the work, or additions or improvements in and about the completion of the building, ship, or other structure, unless the order or certificate has first been made. Mr. Chief Justice Blake, in writing the opinion of this court, said: “The contrary rule is a dangerous standard, and impairs the value, and renders uncertain every written contract for the construction of an edifice. ’ ’ At the trial of this case the following proceedings took place while Mr. W. E. Piper, one of the plaintiffs, was a witness: Direct examination: “Q. In building this hotel building were there a number of extras, or not? (Objected to as immaterial and irrelevant under the pleadings. Objection overruled, and exception noted.) Q. Was there considerable extra work done on the work on this building? A. There was. Q. Can you state the amounts the extra work came to? Defendants’ Counsel: The contract already in evidence provides as to the extra work and what shall be considered extra work. Nothing considered extra work unless it is agreed upon in writing. Q. Mr. Piper, were certain extras' ordered by the architects in the progress of the work? (Objected to as incompetent; the contract calls for orders to be in writing. Objection overruled. Exception noted.) A. There were. Q. Were such agreements for extras made in writing? A. They were. Q. And were the prices for such extras agreed upon? (The defendants ask that the writing be produced as the best evidence.) Q. The extras were agreed upon in writing, were they? A. Yes, sir. (Objected to as incompetent.) Court: It is proper to state if they were; as to — 239 — what they were, the writing is the best evidence. Q. Mr. Piper, can you state the total amount that was agreed upon between you and the architects and Mr. Murray that would be paid for the extra work? (Objected to as immaterial and incompetent under the pleadings; the contract required such matter to be determined in writing. Overruled. Exception.) A. The extras amounted to $9,096.55. (Objected to as calling for a conclusion of the witness. Overruled. Exception.) Q. What, then, was the total amount due your firm for work on the hotel building, for extras and the contract which was originally made ? (Objected to as calling for a conclusion of the witness. Overruled. Exception.) A. $79,096.55.” It will be noted that the plaintiffs were thus allowed to testify, not only that the plans and specifications were changed, but that extra work to the amount of over $9,000 was performed, and this without producing any written order or certificate as a basis for either claim. Under the terms of the contract, “nothing was to be considered an extra unless agreed upon in [3] writing.” No writing was produced, and in its absence the presumption was that there were no extras. Counsel for respondents say in their brief: ‘ ‘ The fact is, however, that plaintiffs did not attempt to prove what the extra work was nor the contents of any written instrument.” But this argument is fallacious. They were, in fact, allowed to testify that they had performed extra work, without producing the only evidence which would prove, under the terms of the contract, that such work was extra work, to-wit, a written agreement or certificate. This, in effect, was proving the contents of a writing by parol. It will not do to say that they proved that there was such a writing, and therefore they were not obliged to produce it. Being in existence, it was the only evidence of their right to charge for extras, and the mere fact of its existence, or rather that the witness was willing to testify that it existed, did not absolve them from the duty of actually producing it, to the end that the court might judge whether it was such an agreement or order .as would justify a charge for extras. So long as it was not [4] produced, it had no efficacy whatsoever. The effect of the ad — 240 — mission of this testimony was that plaintiffs, by indirection, were permitted to modify the terms of the only contract mentioned in their complaint, a contract which was therein alleged to be in writing. No attempt was made, either by pleading or proof, to show a modification or waiver of the terms of this contract; and it will be noted that Mr. Piper did not testify that Murray had agreed, even orally, to pay them for extra work. The indirect effect of this testimony was to place upon the [5] appellants the burden of proving that respondents had no right or authority to make an application of payments, when in fact and in law the burden was on them to prove that they had such right. 3. At the beginning of the testimony of the plaintiff E. F. Piper, he was allowed to testify, over objection, that plaintiffs, had constructed the building, furnished the materials, and performed the work in general conformity with the plans and specifications. We think the testimony was unobjectionable. The witness had already testified that he had had twenty-two-years’ experience as a builder, and that he was “on the job most of the time, ’ ’ although he had made trips to Billings. He was. not, however, able to say of his own knowledge that every detail of the contract had been carried out in strict conformity with its. terms. The question was simply preliminary. In trying a case of this nature, some foundation must be laid for showing a right, of action on the part of the plaintiff. It will not do to take up the time of the court by inquiry, in the first instance, as to-every detail. Liberal opportunity for cross-examination should, of course, be allowed, and if, upon inquiry as to particular portions of the work, it develops that the contract has in fact been breached, the court and jury will readily note the fact. We see-no objection, in a case like this, to allowing a plaintiff who is an [6] expert and generally conversant with the details of the-work, to testify that it has been performed in substantial conformity with the plans and specifications -attached to the contract. 4. If we assume that the plaintiffs performed their part of the contract in substantial compliance with its terms (a question of — 241 — fact which was properly submitted to the jury), we think the testimony sufficiently shows that the architects acted arbitrarily in withholding a final certificate, or, at any rate, that it was not withheld because of any fault of the plaintiffs. 5. One Otto Stoelker, an expert in concrete work, testified as to certain cracks in the concrete upon the building. He was asked by defendants’ counsel, on cross-examination, “Where [7] . would you place the blame in the cracking of the cement work?” The court properly sustained an objection to this question, and also to the following, “Whose duty is it to provide for expansion and contraction?” 6. The witness E. F. Piper testified for the plaintiffs that he knew that the sand used was the best quality the locality afforded, because a man told him so. This, of course, was hearsay; but the motion to strike it out was somewhat trivial. 7. While it was prbper to allow Piper tq testify in answer to a preliminary question, and in view of his general acquaintance with the work, that all of the specifications of the contract were substantially carried out, it was not error to refuse to allow the defendants’ witness Brookman to answer this question, “In your opinion as a practical builder, Mr. Brookman, state whether or not the contractors were entitled to receive, or the architects in charge entitled to give, a final certificate of this work, according'to the plans and specifications.” Brookman had inspected [8] the building on the day before he was called as a witness, and had testified to what he claimed were certain defects in its construction. The court was correct in not allowing him to substitute his judgment in place of that of the architects or the jury, as to whether plaintiffs were entitled to a certificate entitling them to final payment. 8. It is contended that the court erred in admitting a certain Exhibit “G” in evidence, over defendants’ objection, being a letter from Link & Haire, the architects, to the Piper Construction Company. If the letter shows anything, it is that plaintiffs had not completed their contract at the time it was written; but, — 242 — in so far as their ease is concerned, we think it not only irrelevant, bnt many portions of it are incompetent. 9. The matter of allowing the jury to inspect the hotel, [9] many months after its alleged completion, was within the sound legal discretion of the trial court, and we find no abuse of that discretion. 10. It is contended that the court erred in giving the following instruction: “(3) You are instructed that, although the. contract in question in this ease provides that payments shall be made to plaintiffs only upon the architects’ certificate, yet if you find that defendant, The Monida Trust, has made payments to plaintiffs without requiring the production of such certificates, then such requirement has been waived by said defendant, and the failure to procure such certificate is not a bar to this action. ’ ’ [10] We think this instruction should not have been given. The complaint is not framed on the theory that the final certificate was waived. Article 10 of the contract expressly provides that “no certificate given or payment made, except the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and no payment shall be construed to be an acceptance of defective work or improper materials. ’ ’ 11. We think instructions Nos. 4 and 5, of which complaint [11] is made, correctly interpret the contract, and the law relating thereto, when read in connection with the other instructions. The judgment and order are reversed, and the cause is remanded for a new trial. Reversed md remanded. Mr. Chief Justice Brantly and Mr. Justice Holloway concur. Rehearing denied May 11, 1911,