GUARANTEE TITLE & TRUST COMPANY, a Corporation, as Administrator in Arizona of the Estate of C. E. GREEN, Deceased, Appellant,
H. T. WILLIS and B. L. WILLIS, Copartners Doing Business Under the Firm Name and Style of H. T. WILLIS & SON, Appellees
APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge. Judgment reversed and case remanded.
Mr. F. M. Gold and Messrs. Favour & Baker, for Appellant.
Messrs. Norris, Flynn & Patterson, for Appellees.
[38 Ariz. 34] LOCKWOOD,
H. T. Willis and B. L. Willis, hereinafter called plaintiffs, brought suit against C. E. Green, hereinafter called defendant. The original complaint sought to recover $8,878.92, alleged to be due plaintiffs for work performed under a certain contract between the parties. Some months later it was amended by adding thereto four items. The first was for extra work alleged to have been performed at defendant's request, of the value of $2,961.40; the second was for $5,000 for extra work caused by defendant's failure to remove a pipe-line; the third was for $1,000 extra work caused by defendant's construction of a trench line which interfered with plaintiffs' operations; and the fourth was for $4,000 for extra work in removing certain dirt over an embankment.
Defendant demurred to the amended complaint on the ground that there were improperly united an action in contract and on in tort; filed a plea in abatement and various motions, all which were overruled, and then answered, alleging, in substance, that the
plaintiffs had already been overpaid for the work actually done under the contract, and that the extra work mentioned in the four special items above described, if indeed plaintiffs had been damaged thereby as they stated, was done as a result of the terms of the contract, and was not made necessary [38 Ariz. 35] through any fault of defendant. The latter then set up, both in the answer and in a cross-complaint, that plaintiffs had without legal cause abandoned their contract before it had been completed, and that he was compelled to finish it at a cost to him of $16,492.95, for which he prayed judgment, together with the amount which he claimed plaintiffs had been overpaid for the work actually done. The case was tried to a jury, which returned a verdict in favor of plaintiffs in the amount of $7,500, and, after the usual motion for a new trial had been made and overruled, this appeal was taken. Defendant having died in the interim, an administrator was appointed and substituted as a party in this court.
There are some twenty-six assignments of error, but we prefer to discuss the case on certain legal principles involved which will necessarily determine the appeal, rather than to refer to the specific assignments. There is singularly little conflict in the evidence as to the matters necessary for a proper disposition of the case, and we therefore state the facts as follows:
The town of Flagstaff desired to install a new water system and advertised for bids for its construction. The Burns & McDonnell Engineering Company, of Los Angeles, California, prepared the plans and specifications for the work, and represented the town in all dealings with the parties, and we shall refer to such company or its representatives in charge of the work on the ground as the engineer.
Defendant herein secured the contract for the construction of a large concrete reservoir, which was to be one of the units of the system. Shortly thereafter plaintiffs came to him and offered to subcontract the work of excavating the reservoir. After some negotiation and discussion they entered into a contract, which reads in part as follows:
[38 Ariz. 36] "Whereas the party of the second part has been awarded the contract with the town of Flagstaff, Arizona, to construct a 50,000,000 gallon Reservoir for the said town, the said contract, plans and specifications becomes a part of this contract in so far as it pertains to the excavation and embankment for said Reservoir as though they were set out full herein.
"That the said parties of the first part, in consideration of the covenants on the part of the said party of the second part hereinafter contained, hereby covenants with the said party of the second part that the said parties of the first part will furnish all labor, tools and equipment except Roller and do all excavating and embankment ready for placing Concrete Lining for the 50,000,000 Gallon Reservoir for the town of Flagstaff, Arizona, and will do all excavating, spreading, wetting, rolling and hand-finishing, ready for concrete for said reservoir as directed by the party of the second part and the City Engineers of the town of Flagstaff, Arizona, and according to the Plans and Specifications for the building of said Reservoir.
"The parties of the first part agrees to excavate not less that 1200 cubic yards each day until said contract is completed, Sundays expected and complete said excavation in eighty days from April 13th, 1925.
"If parties of the first part fails to excavate an average of 1200 cubic yards each day and shall fail after requested by the party of the second part to put on additional teams, men and equipment on in order to excavate the 1200 cubic yards per day, the party of the second part may put equipment, teams or other devices to work to excavate said Reservoir and charge parties of the first part with said expense, and with-hold said expense from moneys due to party of the first part.
"Parties of the first part agrees to carry Workmens Compensation in accordance with the Arizona State Laws, and will furnish party of the second part satisfactory evidence that they have paid ...