Walker the Weeper, Inc. v. Commercial Engineering Corp.

584 P.2d 268, 283 Or. 407, 1978 Ore. LEXIS 1082
CourtOregon Supreme Court
DecidedSeptember 12, 1978
DocketNo. 74-1554-L-3, SC 25179; No. 74-1162-E-3, SC 25177; No. 74-1190-E-3, SC 25178
StatusPublished
Cited by1 cases

This text of 584 P.2d 268 (Walker the Weeper, Inc. v. Commercial Engineering Corp.) 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
Walker the Weeper, Inc. v. Commercial Engineering Corp., 584 P.2d 268, 283 Or. 407, 1978 Ore. LEXIS 1082 (Or. 1978).

Opinion

BRYSON, J.

Commercial Engineering Corp., hereinafter referred to as "Contractor,” brought two suits against Walker the Weeper, Inc., hereinafter referred to as "Walker,” to foreclose mechanics’ liens1 for building a mobile home park2 and a pond3 for Walker4 on a separate parcel of land.5

Walker brought an action6 against Contractor, in three counts, alleging negligence and breach of contract in the design and construction of the mobile home park. Contractor answered and counterclaimed, alleging negligence on the part of Walker, the balance due for the reasonable value of its labor and materials furnished Walker, and certain counterclaims.

The three cases were joined for trial sans jury. The trial court, on request of counsel, made and entered extensive findings of fact and conclusions of law. The court entered judgment in favor of Contractor in all three cases and Walker appeals.

Walker’s six assignments of error contend that the trial court "erred in finding Contractor was entitled to [410]*410recover upon its suit to foreclose its mechanic’s lien upon the mobile home park,” "in finding Contractor was entitled to recover upon its suit to foreclose its mechanic’s lien upon the farm pond,” "in making its findings of facts,” and "in making its conclusions of law.”

We review Contractor’s two foreclosure suits de novo and Walker’s action at law on the record to determine if there is any competent evidence to support the trial court’s judgment.

We have reviewed all 15 volumes of transcript and 140 exhibits. Although there are conflicts of testimony, the general facts leading up to the transactions and litigation here involved are as follows. Jay Walker, president of Walker, had been engaged in the business of selling mobile homes and recreational vehicles for a number of years and was interested in constructing a mobile home park. In 1971 Jay Walker discussed with Robert Sevcik, president of Contractor, the possibility of building a mobile home park but this plan did not materialize. In 1972 Walker arranged with Contractor to examine a bare land site adjoining the city of Phoenix, in southern Oregon, as a location for constructing a mobile home park. The site, containing 13 to 15 acres, was deemed suitable. Walker ordered a low-cost, family-type mobile home park with minimum size requirements for tenants with lower income and children. No such park was available in the vicinity. Walker and Contractor agreed that Contractor would design and build the park according to certain broad guidelines set by Walker; however, Walker did not request detailed plans nor did he ever tell Contractor to build the park according to any particular plans. The parties wanted to get started on the project and have governmental approval before October 1,1972. Jay Walker testified on direct examination as follows:

"Q And what did he [Sevcik] tell you those drawings represented?
[411]*411"A These drawings were representing what we thought we were going to build in the park, is what I thought.
"Q Did you present these to the county?
"A Mr. Sevcik and I presented them to the county.
"Q What was the purpose of doing that?
"A We had to get an approval from the county before we could proceed on the park.
"Q Okay. And you heard some testimony that you were—I think it was Mr. Sevcik testified that you were trying to do this before October 1, is that correct?
"A We wanted to get started, get the ground broken before October 1st.
"Q And there was a change of law or a change in the governing body or supervision at that time?
"A Yes.
"Q What was it, a new ordinance?
"A Well, there was going to be a new park ordinance.”

On cross-examination he testified:

"A I received a commitment from the bank July 5th of ’72 for $200,000.00 [subsequently raised to $310,000], and the plans were approved on 9/22 of ’72 by Mr. Dieriex, and that would be the commitment that I had at the time that the park was started.
"Q All right, so having reviewed that, was it the bank’s first commitment in July of ’72 that prompted you to request Mr. Sevcik to secure plans to submit to the county for approval?
«* * * * *
"A Yes, I believe that’s correct.”

These drawings were those expressly drafted to secure construction approval from the state, county, and local health authorities, and to enable Contractor to obtain bids and prices in order to submit an estimate of construction costs to Walker in obtaining his financing from the bank. For reasons hereinafter stated, the parties mutually deviated from these original drawings. In fact, the park was not built according to any particular plans.

[412]*412Walker wanted the park constructed as inexpensively as possible. On May 3,1972, Contractor wrote to Walker regarding the "Proposed construction of trailer park” stating, "[t]he following is an itemized breakdown of the estimated cost for the construction of the development” (emphasis added), setting forth some 12 itemized cost items totaling $250,877 with an alternate estimated price for carports with or without storage. The carports were eliminated by Walker.

On May 5, 1972, Walker wrote a letter to the United States National Bank of Oregon, based on estimated costs submitted in Contractor’s letter of May 3. The letter to the bank for the purpose of securing financing used Contractor’s estimated costs, stating that the development and construction was for "121 FAMILY UNITS.” The letter further stated that "33% of the spaces will take double wides, and the balance will take 12' or 14' wides [referring to width of the mobile homes].”

When the project was approved by governmental authorities and construction was commenced, the boundaries of the project site had not been determined because of certain claims to a portion of the property on the easterly perimeter. When the preliminary plans were submitted to the financing bank, they required the moving of considerable ground to a higher level to improve the "floodplain” of the parcel on which the park was being constructed. It was discovered that the sewer line into which the park was to tie its sewage outlet was outside of a known sewer easement. The original drawings provided for roads with a crown in the middle and curbings. In an effort to reduce expenses, Walker eliminated certain curbings and the crown type roadways in favor of a "valley” roadway with drainage down the middle. Walker was to provide topsoil for the project, which was eliminated at his request. There is expert testimony that considerable topsoil was important to improve the drainage of the site.

[413]*413In general, Walker left the building in Contractor’s hands. Walker approved construction on the site from time to time. At first Walker was pleased with the low cost of the park.

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Cite This Page — Counsel Stack

Bluebook (online)
584 P.2d 268, 283 Or. 407, 1978 Ore. LEXIS 1082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-the-weeper-inc-v-commercial-engineering-corp-or-1978.