Wakefield v. Supple

160 P. 376, 82 Or. 595, 1916 Ore. LEXIS 135

• Court: Oregon Supreme Court
• Decided: October 17, 1916
• Status: Published

Opinion

Opinion by

Me. Chief Justice Mooee.

1, 2. In Smith Typewriter Co. v. McGeorge, 72 Or. 523 (143 Pac. 905), it was held that when the trial court, within the time allowed, discovers that such a mistake of law has been made at the hearing of a cause as would necessitate a reversal of the judgment if brought up for review, such final determination may be set aside and a new trial ordered. To the same effect, see, also, Rudolph v. Portland Ry., L. & P. Co., 72 Or. 560 (144 Pac. 93); Frederick & Nelson v. Bard, 74 Or. 457 (145 Pac. 669); McGinnis v. Studebaker, 75 Or. 519 (146 Pac. 825, 147 Pac. 525, L. R. A. 1916B, 868); Delovage v. Old Oregon Creamery Co., 76 Or. 430 (147 Pac. 392, 149 Pac. 317); Pullen v. Eugene, 77 Or. 320 (146 Pac. 822, 147 Pac. 768, 1191, 151 Pac. 474). Predicated upon this rule, the question to be considered is whether or not the evidence received in respect to the alleged oral modification of the original contract was sufficient to authorize a submission of the cause to the jury. The rule is settled that the terms of a written contract may be altered by a subsequent parol agreement of the parties: Pippy v. Winslow, 62 Or. 219 (125 Pac. 298); City Messenger Co. v. Postal Tel. Co., 74 Or. 433 (145 Pac. 657). The plaintiff’s testimony tends to support the averments of the complaint in respect to the delay occasioned by failing to deliver the material within the time expected, and also as to the extra amount of labor necessitated by reaming the punched holes in the plates. In a letter which he wrote to the defendant May 28, 1913, in referring to these matters, he says:

“Of course, this long wait has caused me considerable expense, as I have had to keep men within call and keep a plant down there ready at all times to unload the material. I think I am entitled to some compensation for all this delay and should be pleased to hear from you in the matter, as I do not wish to be unreasonable or make any unreasonable demands. Further, when I took the work it was expected that the erection bolts would be furnished with the material. I have had to furnish these bolts and think it would be no more than right that you should pay for them, as I took the work at a very low figure. As there is considerable of the material on hand now, we have started to get it together and think we should have some understanding about the lost time that has passed before going any further.”

Plaintiff on June 11, 1913, again wrote the defendant as follows:

“I am assembling and riveting hulls for the two government dredges, the work having been undertaken, as per my contract of February 11, 1913. Not having specifications or plans showing details and descriptions of the work, I derived my information for the work required from Fred A. Ballin. At the time our contract was signed it was expected that the steel would arrive in a few days. The last four cars of this steel arrived yesterday, being about two months later than expected and the other cars having been strung along one at a time made it necessary to keep a force of men on hand in readiness to unload this material and adding additional expense to the cost of the work. It was expected that erection bolts would be furnished with this material and as I furnished these bolts I should be paid for the same. The plates that have to be calked were to have been beveled-sheared, which was not done. All connections were to have been riveted to the large members. Failure to do this has increased the number of rivets to be driven and the steel being in small pieces adds to the difficulty and cost of handling same. The wedges to be used as stop waters at the butt of the lower sheets should have been punched at the shop, and this will have to be done before they are driven, as it would be too expensive to drill them after they are in place. As these changes will make the work cost more than the prices given in my contract, I suggest that you and Mr. Baffin meet me at the yard at your earliest convenience and reach some agreement to take care of this additional cost. I do not wish you to be dissatisfied nor do I wish to be out any money on account of this work. ’ ’

From a letter written by Wakefield to Supple July 12,1913, an excerpt is taken as follows:

“I have written to you repeatedly stating the difference between the job we are doing and the job we contracted to do. The contract expressly stated that the material is to be fabricated, which Í understand, means ready to put together, while the actual work we are doing is reaming the thing entirely all over, or, in other words, there has been no work done except merely punching and a very poor job at that. The material is badly marked so that it is very difficult to find the pieces that belong together and lots of the material that should be put together under the clause ‘Fabrication’ is shipped loose, little pieces of angle 2x2, 4 to 6 ft. in length. I have written you a great many times about these differences, but do not seem to get any direct results from them other than, ‘will make it all right in the end’ but there is so much to be made right that I think we ought to have an understanding now. I am perfectly willing to do as we agreed in our contract to leave our differences to the inspector for the government, Mr. Baxter. The clause in the contract referring to your having an agreement with the Great Lakes Engineering Company for the fabrication in which they are responsible for the proper execution of the same, their representative disclaims any responsibility for mistakes and says that the reaming is especially excluded from their contract.”

Replying to this communication, the defendant on July 14, 1913, wrote the plaintiff a letter, from which extracts are taken, viz.:

“Dear Sir: Your favor of the 12th inst. duly noted. You state that you have written a number of letters regarding our contract for the building of the two government dredges, and that I have failed to answer them in writing. Permit me to state that as far as differences are concerned, there is no need to take up any generalities, inasmuch as the contract itself, states very definitely and positively what part of the work is to be done by yourself and me. * # You further agreed to settle with the representative of the Great Lakes Engineering Works, any discrepancies which may be discovered on the work and material, and make your own agreements for extra charges, and for their collection for the correction of any possible changes or mistakes discovered, due to faulty fabrication on the part of the Great Lakes Engineering Works. * # You further state, that I made you understand that I would ‘Make it all right in the end,’ implying that I acknowledged that there was something to make all right. I wish to dispel this impression emphatically, as so far nothing has appeared on which you could base any claims against me under our contract. I did say and meant to say, that where you could show that I owed you any money in the end, I would pay you, provided you could make the right kind of a showing. * * .1 understand from Capt. Haight, representing the G. L. E. W., that he is willing to correct any mistakes made in fabrication.”

The quotations from these letters partly express the dispute existing between the parties. It appears from the testimony that the plaintiff sustained a financial loss by reason of the delay in delivering the material; that he was hindered in the performance of his work in assembling the parts because the numbers placed thereon were worn off by transportation; and that he was hindered in attempting to find, or in procuring, substituted parts. The evidence shows that Mr. Wakefield settled with C. M. Haight, the representative of the Great Lakes Engineering Works, from whom he received a credit for extra work. What sum was thus accounted for is uncertain. Mr. Haight stated upon oath that $135 was so credited, while S. R. Booth, who as bookkeeper had charge of the plaintiff’s, office, testified the plaintiff “received something like $300 for these extras that cost him about $20,000.”

It will be taken for granted that the plaintiff’s testimony was sufficient to be submitted to the jury as tending to substantiate the averments of the complaint with respect to the existence of a partnership between the defendant and F. A. Baffin, whereby the latter was-to have received a consideration for personally supervising the work of constructing the dredges. It will also be assumed that Wakefield’s testimony was adequate to go to the jury as tending to establish the allegations of the primary pleading as to Baffin’s asserted representations, though such imputed declarations are-denied by him. His financial interest in the contract and his alleged falsification of material facts to the plaintiff might show an inducement to modify the written contract. While such incentive could afford a valid reason for altering the original agreement, it is-, insufficient by itself to sanction a change in any of the terms of the writing.

In Barber v. Toomey, 67 Or. 452, 463 (136 Pac. 343, 346), Mr. Justice Ramsey says:

“In order to establish a contract, the evidence should show when, where, and with whom the contract, was made, and the terms thereof.”

A transcript of the testimony given at the trial of . this cause, consisting of 812 pages, has been carefully read and .considered; but from such research we have been unable to find any witness who testified to a modification of the original agreement.

The complaint charges:

‘ ‘ That upon the discovery by plaintiff of the delay in delivery of said materials and members and its condition, and the amount of work required to erect and assemble said materials in place and upon discovery by plaintiff that said Ballin was financially interested with said defendant in the profits to be made from said contract, this plaintiff informed defendant” thereof; and “that thereupon the defendant orally requested plaintiff to enter upon and complete the work of erecting said materials in place, and thereupon agreed orally with plaintiff that he [defendant] would pay plaintiff whatever the work and labor was found to be reasonably worth at the conclusion of said work. ’ ’

The testimony shows that it required about three weeks to transport a carload of the material used in the construction of the dredges from Detroit, Michigan, where it was “fabricated,” to Portland, Oregon, William Wakefield, the plaintiff’s son, testified that the first carload was sent out from the factory March 18,1913, and the last carload on May 21st of that year. The first carload should have arrived about April 10, 1913, when the plaintiff evidently discovered that the smaller parts of the material had not been bolted or riveted to the larger members, and that the marks that had been placed on the plates had been worn off in transit. An examination of the letter from Wakefield to Supple, July 12, 1913, wherein it is stated, “I have-written you a great many times about these differences, but do not seem to get any direct results from them other than, ‘will make it all right in the end,’ but there is so much to be made right that I think we ought to have an understanding now,” will show that on that date no definite oral agreement had been made. On Ms direct examination the plaintiff’s attention was called to the language thus employed, and he was asked by his counsel:

“Now, I wish you would tell the jury what conversations you had with Mr. Supple wherein he told you he would make it all right in the end, if any. ’ ’

The witness replied:

“Well, we had numerous conversations relating to differences in the way the material was being delivered, and what I had anticipated and what the contract to my ideas called for; but Mr. Supple would not come right down to anything. He would always be sort of evasive and say he would look it up, and make it all right, and see that I didn’t lose anytMng, and that Mnd of talk.

“Q. Now, along in June, down on the works, did you have a conversation with Mr. Supple?

“A. I had several. I had one I remember in particular, in the early part of June; but it was all to the same purport, complaints of methods of delivery and condition of the stuff as delivered and the poor work that was done.

“Q. What did he say, if anything?

“A. He promised that he would make it all right; to stop kicking and he would see that it was all right.

“Q. See that what was all right?

“A. Why, I suppose the remuneration; that is what we were talking about.

“Q. Eemuneration to whom?

“A. To me, I suppose; there was nobody else inter-

And for what?

“A. For the building of the dredges.

“Q. Did you then go ahead and build them?

“A. Tes, I went ahead and built them under protest right from the start, objecting at all times from the start about the time, and explained to him that the prolongation of the delivery was working a serious hardship on me; that wages were going up all the time; and that the men I had who would stay by me and knew me were all drifting away one at a time, and then had to, be replaced by somebody else.”

The testimony shows, however, that the only exact promise made by the defendant was to the effect that if he made any money by building the dredges, and the plaintiff lost any, in performing his part of the agreement, Supple would aid Wakefield. Thus Mr. Supple, as a witness, was directed by his counsel:

“Tell the jury what conversation you had with Mr. Wakefield over extras or over this contract in which he said something about suing you, and when was that?”

The defendant replied:

“Well, that was along, as near as I can remember, about four weeks or so before I paid him the last payment. He said he guessed he would have to sue me. He says, ‘Well, Joe, you are going to make a whole lot of money off of this.’ We were both standing out there, and I think Mr. Clark was standing there, and he [the plaintiff] says, ‘I am losing money on it, and I think I will have to sue you.’ He had told me that before. I said ‘Well, Mr. Wakefield, if you will push this thing along, and I make any money off this job, and you don’t, I will help you out.’ Now, that is what I said to him. * *

“Q. What did he say then?

“A. He said, ‘All right, we will let it go at that.’ ”

This testimony is corroborated by that of C. M. Haight, who quoted Mr. Wakefield when the latter on September 24, 1913, referring to the adjustment of what he considered unusual amounts with respect to constructing the hulls of the dredges, said:

“But, Joe, you don’t think for a moment that I ought to pay for all these extra bills?

“Q. Whom did he mean by ‘Joe’?

“A. Mr. Supple. Mr. Supple sat right across the table from Mr. Wakefield, and Mr. Supple says, ‘Well, you go ahead and rush this work through, and I don’t know but what I am going to be at a loss the way the work is dragging on; and when the work is finished, if I have made any money and you show you have lost money, I will make it right with you.’ ”

Assuming, without deciding, that such a promise is enforceable, the testimony as to the avails received by the defendant under the terms of his contract with the Portland Iron Works to build and finish the dredges, except to furnish and install the machinery, shows that he lost money in complying with the terms of his agreement. The defendant, speaking of this-matter and of Mr. Wakefield, testified as follows:

“Now, I didn’t suppose I had to help him out, or I didn’t owe him anything; but I would divide up with bim; I would help him out if I made anything and he didn’t. # #

“Q. Did you make anything, or did you lose?

“A. I am out over $13,000 in hard-earned money. I didn’t get it out of any extras there either; and all through their fault with dilly-dallying along with the work. •

“Q. What was the reason?

“A. Because they [the plaintiff and his employees]' did not push the work ahead. They misrepresented the thing to me; said they had tools and men and everything and they would push this thing right along, and they only had a few tools and nothing like men enough to build a boat one quarter the size of either one of those in any kind of time. If they had done the work, I would have come out all right.

“Q. What does this $13,000 consist of, this loss? Is-it what the government holds back?

“Á. It is money I paid out, and the most of it is money that the government took from me at a hundred dollars a day, because I could not get them to do anything. I could not get the work along.”

A. F. Tarilton, the defendant’s bookkeeper, was asked:

“Do you know whether or not Mr. Supple made or lost money on this contract — yes or no ?

“A. He lost money.

“Q. State if you know what his loss was. * *

■ “A. It is $15,366.98.”

The defendant testified that Mr. Baffin, was to have received compensation for supervising the construction of the hulls of the dredges if any money had been made under the contract with the Portland Iron Works, and this witness further stated upon oath that he so informed the plaintiff before the latter subscribed his name to the agreement.

Mr. Baffin also testified that he made no misrepresentation to the plaintiff, but informed him generally of the nature and extent of the work required to be performed, and delivered to Mr. Wakefield a set of the completed plans before the contract was consummated.

3. An examination of the testimony convinces us that the written contract was never modified by any subsequent oral agreement; that the evidence received on this branch of the case was insufficient to be submitted to the jury as tending to establish the averment of the complaint in this particular; and that no error was committed in setting aside the verdict and judgment.

It follows that the order of the court complained of is affirmed. Affirmed. Rehearing Denied.

Mr. Justice Bean, Mr. Justice Benson and Mr. Justice McBride concur.