Davis v. Thurston County

Citations

• 119 Wash. 414
• 205 P. 840
• 1922 Wash. LEXIS 795

Syllabus

<p>Pleading (74) — Reply—Depasture—New Matter — Consistency. In an action on a county bridge contract for damages, for refusal to allow the contractor to complete the work, in which the county alleged failure to complete the contract within the time limit, it is not a material variance for plaintiff to reply that he was delayed and unable to finish the work within the time limited because of inability to obtain cement and because of high waters.</p> <p>Contracts (148, 161) — Performance or Breach — Excuse for Delay — Evidence—Admissibility. Where a county answered to a contractor’s complaint that he had abandoned the contract after failing to complete the work on time, and there was evidence tending to show waiver of the time limit, evidence that the delay was caused by high water and inability to obtain cement is admissible as tending to disprove abandonment.</p> <p>Contracts (151, 162) — Performance or Breach — Waiver, of Objections — Evidence—Question for Jury. The liability of a county upon a bridge contract, after preventing the contractor from completing the work after the time limit had expired, is for the jury where there was evidence of waiver of the time limit and that the contractor was able and willing to perform, and had not abandoned the work.</p> <p>Damages (74, 128) — Measure of Damages — Breach of Contract — Instructions. Where a contract for the construction of a bridge is breached through no fault of the contractor before completion of the work, the measure of damages, where the contractor does not ask for profits lost, is such proportion of the whole contract price as the amount of work done bears to the whole amount of the work to be done; and it is error to instruct the jury that he would be entitled to reimbursement for his expenses in so far as he proceeded in the performance of the contract and' in addition all profits which he would have realized by performing the whole contract.</p>