Garey v. City of Pasco

Citations

• 89 Wash. 382
• 154 P. 433
• 1916 Wash. LEXIS 680

Syllabus

<p>Jury — Right to Jury Trial — Equity. Const., art. 1, § 21, providing that “the right to trial by jury shall remain inviolate” has no application to actions of equitable cognizance.</p> <p>Account — Mutual Items of Account — Pleadings—Issues. In an action for a balance due on a building contract for the construction of a city hall, including extras, in which the city set up numerous items of set-off and counterclaim and prayed for an accounting, so that the items claimed by each were items of mutual account, the plaintiff is not entitled to a jury trial, as the pleadings raise issues determinable as for an accounting.</p> <p>Contracts — Building Contracts — Demurrage — Waiver — Termination of Contract. A city, upon terminating a contract for the construction of a city hall and taking over the work of completing the building, cannot claim damages under the demurrage clause, calling for ?25 per day for delay in completing the building; where the delay up to that time was waived or the fault of the city.</p> <p>Same — Building Contracts — Certificates and Partial Payments —Estoppel. Under a building contract providing that no certificate given or payment made during the progress of the work shall be construed as an acceptance, the city is not estopped from asserting set-offs and counterclaims by reason of certificates of the architects which were not final and partial payments made thereon.</p> <p>Trial — Reopening Case. It is discretionary to reopen the ease for further evidence, after the parties had rested and the court had the case under advisement.</p> <p>Costs — On Appeal- — Reduction of Judgment. Appellant having secured a reduction of $875 in the judgment, is entitled to costs on appeal.</p>