Zindorf v. Tillotson

Citations

• 83 Wash. 472
• 145 P. 587
• 1915 Wash. LEXIS 713

Syllabus

<p>Appeal — Review—Harmless Error — Pleadings — Waiver of Objections. Under Rem. & Bal. Code, § 307, requiring the supreme court to disregard all errors on appeal which do not affect the substantial rights of the complaining party, the failure of the defendant to designate his affirmative defense as a cross-complaint or counterclaim should be deemed harmless error, where his prayer was for the aggregate of the compensation and damages claimed, and the case was tried upon the merits after the plaintiffs had joined issue upon such affirmative matter.</p> <p>Contracts — Modification — Promise of Extra Compensation— Consideration. Although a subcontractor has contracted to do the grubbing as a part of the excavation in highway construction, the contractor’s subsequent promise to pay additional compensation for excess grubbing is based upon a valid consideration, when the contract had been made with the understanding that the grubbing would not exceed a certain amount and on discovery of the discrepancy the contractor requested his subcontractor to complete the grubbing and agreed to pay the reasonable value thereof.</p> <p>Fraud — Misrepresentations—Evidence—Sufficiency. In an action by a subcontractor against the principal contractor to recover the value of excess work on a road contract, fraud on the part of the latter is sufficiently shown, where it appears that the latter was an experienced road builder, knew the nature of the clearing and grubbing to be done, and the prices for which it could be profitably done; that he knew the necessary amount of grubbing would equal at least twenty acres, but represented to the subcontractor that he had personally examined the road and there was about nine or nine and one-half acres of grubbing; that the subcontractor was less capable and experienced, and without sufficient time to carefully examine the nature and extent of the work before entering into the contract, and relied upon the representations of the principal contracto