Ausland Construction, Inc. v. City of Rogue River

Court of Appeals of Oregon

Ausland Construction, Inc. v. City of Rogue River

590 P.2d 255, 38 Or. App. 295, 1979 Ore. App. LEXIS 2371

CourtCourt of Appeals of Oregon

DecidedJanuary 29, 1979

DocketNo. 76-1070-L, CA 10927

StatusPublished

This text of 590 P.2d 255 (Ausland Construction, Inc. v. City of Rogue River) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ausland Construction, Inc. v. City of Rogue River, 590 P.2d 255, 38 Or. App. 295, 1979 Ore. App. LEXIS 2371 (Or. Ct. App. 1979).

Pincite

Opinion

HOWELL, J.

pro tempore.

Plaintiff, a contractor, filed this action to recover a balance of $4,700 due on a contract to construct a sewage treatment plant for the City of Rogue River. The defendant City admitted the balance was owing to plaintiff but counterclaimed for $9,000 for failure to install a walkway around the plant and for $947 for failure to install certain electrical controls.¹ The action was tried without a jury and the trial court entered a judgment for plaintiff for the balance owing and against the defendant City on its counterclaim for the walkway and electrical controls. Defendant appeals.

The dispute focuses upon whether the plaintiff was required, under the agreement with the City, to install the walkway and whether all the electrical work on the controls was completed or not and, if not, whether the hook-up was plaintiffs obligation.

As this is a law action tried before the court without a jury, the only issue presented to us is whether there is substantial evidence to support the judgment in favor of plaintiff. It is not necessary to discuss in detail all the evidence relating to the agreement to construct and the construction of the sewage plant. We find that there was substantial evidence that plaintiff was not required to construct the walkway.

In 1973 the defendant City contracted to have a sewer system and a sewer treatment plant constructed. Plaintiff received the contract to construct the sewer treatment plant. The plant, constructed by Smith & Loveless, is doughnut-shaped and consists of an inner tank called a settling tank and an outer tank called a digester. Plant Model 54-R was first considered but a substitute model, 51-R, was used. A walk[298]*298way around the outer tank was not included in either model.² There was language in the contract that a walkway was to be constructed "around the outer tank.” However, another portion of the contract relating to the Smith & Loveless custom plant lists extra items to be furnished and does not include a walkway on the outside. The testimony is conflicting, but we find it persuasive that in June, 1975, the project engineer for the City certified that the plant was completed, and that it was not until February, 1976, 13 months after the plant was completed, that the City raised the question of the lack of a walkway.

There was substantial evidence to support the finding of the trial court.

Defendant also contends that it was entitled to recover $947 for plaintiff’s failure to install wiring for comminutor controls.³ There was evidence that the controls were in place but were not wired. The trial court found that the system was not hooked up because of a delay in the completion of the sewer system contract, which was a separate contract and not the obligation of the plaintiff, and that plaintiff had perfomed all that he was required to do under his contract. There was evidence to support such a finding. Plaintiff testified that the hook-up was not his obligation, and defendant’s engineer testified that he could not state that the special controls had not been installed.

Affirmed.

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HOWELL, J.

pro tempore.

Plaintiff, a contractor, filed this action to recover a balance of $4,700 due on a contract to construct a sewage treatment plant for the City of Rogue River. The defendant City admitted the balance was owing to plaintiff but counterclaimed for $9,000 for failure to install a walkway around the plant and for $947 for failure to install certain electrical controls.¹ The action was tried without a jury and the trial court entered a judgment for plaintiff for the balance owing and against the defendant City on its counterclaim for the walkway and electrical controls. Defendant appeals.

The dispute focuses upon whether the plaintiff was required, under the agreement with the City, to install the walkway and whether all the electrical work on the controls was completed or not and, if not, whether the hook-up was plaintiffs obligation.

As this is a law action tried before the court without a jury, the only issue presented to us is whether there is substantial evidence to support the judgment in favor of plaintiff. It is not necessary to discuss in detail all the evidence relating to the agreement to construct and the construction of the sewage plant. We find that there was substantial evidence that plaintiff was not required to construct the walkway.

In 1973 the defendant City contracted to have a sewer system and a sewer treatment plant constructed. Plaintiff received the contract to construct the sewer treatment plant. The plant, constructed by Smith & Loveless, is doughnut-shaped and consists of an inner tank called a settling tank and an outer tank called a digester. Plant Model 54-R was first considered but a substitute model, 51-R, was used. A walk[298]*298way around the outer tank was not included in either model.² There was language in the contract that a walkway was to be constructed "around the outer tank.” However, another portion of the contract relating to the Smith & Loveless custom plant lists extra items to be furnished and does not include a walkway on the outside. The testimony is conflicting, but we find it persuasive that in June, 1975, the project engineer for the City certified that the plant was completed, and that it was not until February, 1976, 13 months after the plant was completed, that the City raised the question of the lack of a walkway.

There was substantial evidence to support the finding of the trial court.

Defendant also contends that it was entitled to recover $947 for plaintiff’s failure to install wiring for comminutor controls.³ There was evidence that the controls were in place but were not wired. The trial court found that the system was not hooked up because of a delay in the completion of the sewer system contract, which was a separate contract and not the obligation of the plaintiff, and that plaintiff had perfomed all that he was required to do under his contract. There was evidence to support such a finding. Plaintiff testified that the hook-up was not his obligation, and defendant’s engineer testified that he could not state that the special controls had not been installed.

Affirmed.

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590 P.2d 255, 38 Or. App. 295, 1979 Ore. App. LEXIS 2371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ausland-construction-inc-v-city-of-rogue-river-orctapp-1979.