Westland Construction Co. v. Chris Berg, Inc.

215 P.2d 683, 35 Wash. 2d 824, 1950 Wash. LEXIS 516
CourtWashington Supreme Court
DecidedMarch 7, 1950
Docket31032
StatusPublished
Cited by22 cases

This text of 215 P.2d 683 (Westland Construction Co. v. Chris Berg, Inc.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westland Construction Co. v. Chris Berg, Inc., 215 P.2d 683, 35 Wash. 2d 824, 1950 Wash. LEXIS 516 (Wash. 1950).

Opinions

Hamley, J.

This case presents questions relative to a purported contract to plaster ten houses—the existence of such contract, its terms, asserted breach, and measure of damages.

Westland Construction Company, of Seattle, Washington, engages in the business of constructing houses and selling them to individual purchasers. At the time of the transaction here in question, the company (which will be designated Westland) was a partnership consisting of K. H. Vitt, Aubrey Schmidt and W. R. Lommel. The partners have since incorporated and the corporation has succeeded to all of the rights of the partnership.

Early in 1946, Westland began the construction of the ten houses involved in this case. Nine of these were to be built according to a blueprint designated as Plan 85. The other house was to be built according to a blueprint designated as Plan 68. The company desired to engage a contractor to do the plastering. With this in mind, Vitt went to the office of Chris Berg, Inc., and discussed the matter with S. D. Studley, superintendent of the latter company. Chris [827]*827Berg, Inc. (which will be designated Berg), was a plastering contractor doing work on many housing projects in Seattle.

The meeting between Vitt and Studley took place early in March, 1946. Vitt took with him the blueprints for the two types of houses, and these were left with Studley. The conversation which they had at this time will be discussed at a later point in this opinion. On March 13, 1946, Berg sent Westland the following letter:

“Dear Sir:
“Our bid for lathing and plastering the main floor of your plan No. 85 is, $505.00. An additional $35.00 is to be added if the Recreation room ceiling is to be plastered.
“For lathing and plastering the main floor of your plan No. 68 our bid is, $575.00.
Very truly yours,
Chris Berg, Inc.
(Sd.) S. D. Studley
Superintendent”

On March 19, 1946, Westland sent Berg the following communication on a purchase order form:

“To----Chris Berg, Inc.
“Address---- 600 Mercer Street, Seattle, Washington
“Please enter our order for the following:
“Ship to--- 7015 58th North East When ship - - as required
“Lath and plaster nine (9) homes as per Puget Sound Small Homes Plan No. 85 505.00 each
“Lath and plaster one (1) home as per Puget Sound Small Homes Plan No. 68 575.00
Confirming Order
Per your letter of March 13th
By (sd.) K. H. Vitt
Purchasing Agent.”

Several of the houses were ready for plastering by June, 1946. Westland made repeated requests that Berg begin the work, but this was not done. Early in August, Berg delivered ten thousand wood laths at the project. All of the houseis were ready for plastering by the middle of August. On August 14, 1946, Studley, together with George Piper, estimator and engineer for Berg, went to the project and [828]*828examined the houses. They then went to Westland’s office and talked with Vitt and Schmidt.

At this time Studley informed the partners that, for various reasons hereinafter discussed, Berg would not do • the plastering for the figure mentioned in the letter of March 13th. Studley and Piper then recomputed the cost of plastering, and submitted a new estimate. The revised estimate raised the price for plastering each of the nine Plan 85 houses from $505 to $868. It raised the price for plastering the one Plan 68 house from $575 to $1,148. The work sheets on which the new estimates were based show that the price increase was due partly to an increase in estimated yardage and to the inclusion of some unexplained items. However, the major portion of the increase was due to the fact that, after estimating the total cost of plastering the individual rooms ($460 in the case of the Plan 85 houses), this figure was multiplied by one hundred fifty-five per cent. Thus $253 of the $363 increase for plastering the Plan 85 houses is accounted for by this fifty-five per cent blanket increase.

Studley and Piper testified that the job was refigured at the request of Westland, after it was explained that the work could not be done at the original figure. The witnesses for Berg testified further that, although Vitt and Schmidt indicated that this was a heavy price increase, they agreed to the new figure, told Studley to go ahead, and said that Berg would be sent a written confirmation. Vitt and Schmidt, on the other hand, testified that they had at all times insisted that there was a binding contract at the original figure; that Westland did not request or authorize a recomputation and did not agree to the new figure submitted.

On August 16,1946, Westland wrote to Berg, advising that the work must begin by August 19, 1946, and proceed at a normal and reasonable rate at the prices quoted on March 13,1946; otherwise, all Berg’s materials were to be removed from the property by August 28, 1946. Berg immediately removed the wood lath from the property. Westland then secured the firm of Steeves & Wilson to do the plastering. [829]*829Steeves & Wilson agreed to plaster the Plan 85 houses for $686 apiece, and the Plan 68 house for $909.

Westland later began this action against Berg to recover damages for the failure to perform the alleged contract of March 19, 1946. Recovery was sought on three items of damage: (1) The increased cost of plastering; (2) interest paid on borrowed money and reasonable interest on capital funds contributed by the partners during the delay in construction; and (3) increased general building costs, exclusive of increased cost of plastering and exclusive of interest. Total damages sought, not segregated by items in the complaint, were $8,517. Berg cross-complained for four hundred dollars damages for breach of the'alleged supplemental contract of August 14,1946. This sum represents the claimed cost of delivering and picking up wood lath at the project.

The trial court found that a binding contract had been entered into on March 19,1946; that defendant had breached the contract by refusal to perform; that plaintiff thereby incurred plastering costs of $1,983 in excess of the contract price; and that plaintiff was required to pay additional interest in the amount of $2,604.41 on borrowed funds, by reason of the delay in completion of construction due to defendant’s breach of contract. The effect of the findings and conclusions was to disallow damages claimed by plaintiff representing reasonable interest on capital funds contributed by the partners, and representing increased general building costs exclusive of plastering and interest, and to disallow defendant’s cross-complaint for damages. Judgment for plaintiff was accordingly entered in the sum of $4,587.41. Defendant has appealed and plaintiff has cross-appealed.

Appellant’s first three assignments of error question the trial court’s finding that a valid and binding contract existed and was breached by appellant, and the failure to find that there was a subsequent oral contract to do the plastering at the revised figure.

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Westland Construction Co. v. Chris Berg, Inc.
215 P.2d 683 (Washington Supreme Court, 1950)

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Bluebook (online)
215 P.2d 683, 35 Wash. 2d 824, 1950 Wash. LEXIS 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westland-construction-co-v-chris-berg-inc-wash-1950.