STATE EX REL. SCHUEHLE v. SUPERIOR COURT, 2 Wn.2d 592 (1940)

98 P.2d 1073

THE STATE OF WASHINGTON, on the Relation of Martin Schuehle, Plaintiff, v. THE SUPERIOR COURT FOR KING COUNTY, Donald A. McDonald, Judge, Respondent.[1]

No. 27801.The Supreme Court of Washington. Department One.
February 8, 1940.

[1] APPEAL AND ERROR — DISPOSITION OF CAUSE — PROCEEDINGS AFTER REMAND. Where, on appeal, a judgment dismissing an action by a city contractor to recover on quantum meruit because of changes in the contract, was reversed, with the mandate to the trial court to enter judgment “in consonance with the foregoing,” and the trial court refused to enter judgment, but reopened the case for further evidence, and it appears that the trial court misinterpreted the opinion of the supreme court because of its failure to clearly recite that evidence had been introduced by the appellant sustaining his theory that he was entitled to recover a specific amount, the remittitur should be recalled and the trial court directed to enter judgment for the appellant in such amount.

[1] See 3 Am. Jur. 729.

Application filed in the supreme court September 26, 1939, for a writ of mandate requiring the superior court for King county, McDonald, J., to enter judgment in a cause in accordance with the mandate of the supreme court. Granted.

Dupuis Ferguson, for relator.

A.C. Van Soelen, J. Ambler Newton, and John E. Sanders, for respondent.

MILLARD, J.

The relator brought an action in quantum meruit against the city of Seattle to recover the reasonable value of labor performed and materials furnished in construction of a bridge. The relator alleged substantial changes, not within the contemplation of the parties to the written contract under the terms of which relator was obligated to construct a

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bridge according to certain plans and specifications, were made by the city in the plans, which rendered the contract nugatory as a whole. The theory of the city, which was accepted by the trial court, was that the changes in the plans and specifications did not so radically and substantially alter the nature and cost of the work as to entitle relator to a recovery. The parties were permitted to introduce all the evidence they desired to sustain their respective positions. Judgment was entered dismissing the action. On appeal of relator, Schuehle, we reversed the judgment and remanded the cause with direction to the trial court to enter judgment in harmony with our opinion. Schuehle v. Seattle, 199 Wn. 675, 92 P.2d 1109.

The remittitur was sent down to the superior court upon denial of the petition of the then respondent city of Seattle for rehearing. Relator thereafter submitted to the respondent superior court his proposed form of judgment, awarding recovery to relator of $21,984.86. The court, after hearing argument of counsel for the parties, refused to enter the proposed judgment, or any judgment, and reopened the cause for further evidence.

[1] The cause is now before us on petition for a writ requiring respondent court to enter judgment in accordance with mandate of this court in Schuehle v. Seattle, 199 Wn. 675, 92 P.2d 1109, awarding relator $21,984.86, against the city of Seattle.

The superior court’s misinterpretation of our opinion is doubtless due to our failure to clearly recite that evidence sustaining the theory of Schuehle under which he is entitled to a recovery of $21,984.86 was introduced by then appellant Schuehle and amply supported his contention that the changes or deviations were not within the contemplation of the parties (Schuehle and the city of Seattle) to the written contract and were not covered by the contract.

Page 594

In the light of the above, our mandate, in Schuehle v. Seattle, 199 Wn. 675, 92 P.2d 1109, “to enter judgment in consonance with the foregoing,” is clear. It follows that the remittitur should be recalled and the trial court directed to enter judgment in the amount of $21,984.86 against the city of Seattle in favor of relator.

It is so ordered.

ROBINSON and SIMPSON, JJ., concur.

MAIN, J. (concurring)

I concur in this opinion because, as I view it, the holding here made is required by the majority opinion when the case was here upon the merits (Schuehle v. Seattle, 199 Wn. 675, 92 P.2d 1109).

BLAKE, C.J., concurs with MAIN, J.