Pacific Engineering Corp. v. Evans Products Co.

570 P.2d 655, 280 Or. 257, 1977 Ore. LEXIS 682
CourtOregon Supreme Court
DecidedNovember 1, 1977
DocketTC 417-635, SC 24721
StatusPublished
Cited by1 cases

This text of 570 P.2d 655 (Pacific Engineering Corp. v. Evans Products Co.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacific Engineering Corp. v. Evans Products Co., 570 P.2d 655, 280 Or. 257, 1977 Ore. LEXIS 682 (Or. 1977).

Opinion

TONGUE, J.

This is an action by a consulting engineering firm for $14,584 as the balance due to it for the reasonable value of services performed in the design of a board handling system for one of defendant’s plants. Defendant admitted by answer the performance of some services, for which plaintiff had been paid $5,964, but denied liability for further payments and counterclaimed for $43,536 as damages for breach of contract. The case was tried to the court without a jury. Plaintiff appeals from a judgment denying recovery on its claim and awarding $41,119.70 to defendant on its counterclaim.

In this case the contract for plaintiff’s services was cancelled by defendant for alleged breach of that contract by the plaintiff before the completion of such services. The parties do not disagree upon the rule of law that is applicable in such a case. Indeed, both parties cite and quote from our decision in Trachsel v. Barney, 264 Or 29, 503 P2d 696 (1972), in which we held (at 34) that:

"The right to recover for part performance is not restricted to those cases where the other party has breached the contract. We have held in Rose v. U.S. Lumber & Box Co., 108 Or 237, 246, 215 P 171 (1923) and in Bradfield v. Bollier, 169 Or 425, 432, 433, 128 P2d 942 (1942), that a party may recover the reasonable value of material furnished and work performed although he himself did not comply with the contract so long as his abandonment or breach of the contract was not wilful. The right to recover the reasonable value is subject to the qualification that the work performed be 'of value’ to the owner, as in Rose, or that it be 'substantially beneficial’ to the owner, as mentioned in U.S. Fidelity.”

In a footnote to the statement of that riile the following qualification was stated:

"The rule allowing the contractor to recover for the reasonable value of work performed is qualified by the principle that the owner is entitled to counterclaim for any damages suffered as a result of the other’s failure to [260]*260completely perform. Rose v. U.S. Lumber & Box Co., 108 Or 237, 247, 215 P 171 (1923). * *

The parties disagree, however, upon the application of that rule to the facts of this case and, in particular, upon the sufficiency of the evidence to establish the allegations of plaintiff’s complaint seeking recovery for the reasonable value of its services and the sufficiency of the evidence to support the allegations of defendant’s counterclaim seeldng recovery of damages for plaintiff’s failure to completely perform.

Plaintiff contends the trial court erred in finding that plaintiff had not established the material allegations of its complaint and in finding that defendant had established the material allegations of its counterclaim. Because this is an action at law we must affirm the findings and judgment of the trial court if supported by any substantial evidence. Wagner v. Savage, as Adm’r, 195 Or 128, 141, 244 P2d 161 (1952).

It would serve no useful purpose to summarize the facts of this case or the evidence offered by the plaintiff in support of its complaint and by the defendant in support of its counterclaim. We have reviewed the record, including the testimony offered by both parties. We find that there was a conflict in the testimony on a number of important points. It may be that plaintiff offered sufficient testimony, if believed, to establish the material allegations of its complaint and to require a denial of defendant’s counterclaim for damages for breach of contract. The trial court, however, was not required to believe all of such testimony, particularly on points involving conflicts with testimony offered by defendant, but was entitled to disbelieve that testimony.

One of the crucial issues was whether plaintiff breached the contract by failing to complete the work required by the contract within the time specified by it for the completion of such work. Plaintiff contends that "the evidence is undisputed” that the completion date of August 15,1975, for its services "was waived.” [261]*261Defendant, however, offered testimony that the completion date for all of plaintiff’s services was not "waived,” but was only "extended” to August 28,1975, and that plaintiff’s services were not completed by that date.

Another important issue involved the reasonable value of plaintiff’s services. Again, there was a conflict of testimony whether plaintiff’s services, including engineering design work, was completed and done properly, as testified by plaintiff’s witness, or whether some of such work was not completed and other work was not done properly, as testified by defendant’s witnesses.

Still another important issue upon which there was conflict in the testimony was whether, because of plaintiffs breach of its contract, defendant was required to engage an "outside contractor” and to pay overtime and rental expenses in order to meet its project completion deadline and, if so, the extent and amount of the resulting damage.

After reviewing the record, we are satisfied that the trial court was entitled to disbelieve plaintiff’s testimony and to believe defendant’s testimony on these and other crucial issues and that there was substantial evidence to support the findings of the trial court against plaintiff on its complaint and in favor of defendant on its counterclaim.

Plaintiff’s remaining assignments of error are that the trial court erred in failing to sustain objections to two exhibits offered by defendant, consisting of schedules summarizing expenses incurred by defendant and invoices for particular items of expense. Plaintiff contends that these exhibits were not admissible "under a plea of general damages” because such expenses were "not foreseeable expenses causally related to any alleged breach of contract by plaintiff,” [262]*262but "fall within the realm of special damages,” to be "specially pleaded.”1

At the time of trial, however, the objection made to one of these exhibits, which included numerous invoices and vouchers, was that they "cover various things, but they aren’t in any way connected up with the figures involved in the counterclaim.” That objection by plaintiff to that exhibit was overruled by the trial court upon the condition that "you will clarify this with other testimony.” Defendant’s witness then testified at some length, without objection, explaining the method of computing the amount of damages alleged in defendant’s counterclaim, as set forth in a schedule which was then the subject of a subsequent objection by plaintiff that "I don’t think the computation of figures is relevant, as far as damages for the counterclaim” and that "this engineering work * * * to design and fabricate something different and outside the design parameter that Pacific Engineering was asked to perform, * * * would be of no moment in this proceeding.”

Plaintiff contends that these objections were sufficient to include its present contention that such damages were not "foreseeable” and must be pleaded as special damages, rather than as general damages.

First of all, it may be doubted whether plaintiff’s objections satisfied the requirement that objections to [263]

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Cite This Page — Counsel Stack

Bluebook (online)
570 P.2d 655, 280 Or. 257, 1977 Ore. LEXIS 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacific-engineering-corp-v-evans-products-co-or-1977.