Petition for rehearing denied June 14, 1938 ON PETITION FOR REHEARING (80 P.2d 40) The defendants have filed a petition for rehearing and urge that there was error in the trial court in submitting the question of abandonment of the work involved in the action as stated in our former memorandum.
The defendants claimed that plaintiffs had failed to complete the work as provided in the contract of June 24, 1929, and abandoned the job and requested the court to instruct the jury in substance that if the jury found, from the consideration of all the evidence, the plaintiff did abandon the work through no fault of defendants, they should render a verdict in favor of defendants.
A careful reading of all the charge of the court to the jury convinces us that this question was fairly submitted to the jury. It may be remembered that the contract provided that Opp should pay Bailey $1,500 on October 1, 1929, but instruction No. 35 informed the *Page 320 jury on this point that the sum was payable at that date, regardless of whether the work had been completed or not, provided the contract had not been abandoned by the Baileys. "If they had abandoned the contract at that time, * * * the money would not have been payable under those conditions." There is, however, in the place we have indicated by the stars, the words "of course, that is another matter which is not involved in this case". The meaning of these words is not as clear as though the word "not" had been omitted. Nevertheless, when we take all of the instructions we think the question was fairly submitted to the jury.
The trial court referred to the allegations of the pleadings, particularly that Mr. Bailey and his wife agreed, in writing, to perform certain development work on the property, the Opp mine, that subsequent to the execution of the contract the parties orally modified the written contract by mutual agreement, that the plaintiffs alleged that they duly and fully performed all the conditions of the contract as modified by the mutual agreement, and quoted the conditions in regard to the payment.
That the defendants, by their answer, did not deny the payment of the $100 by plaintiffs, which is claimed Bailey paid in the course of the modification of the contract, but defendants "specifically deny that there was any oral modification of the contract", that defendants further alleged that "the plaintiffs notified the defendants that they were financially unable to complete the contract and would be forced to abandon the same, and thereupon the plaintiffs offered to pay, and did pay to John Opp, one of the defendants, the sum of $100 for the purpose of having the said Opp endeavor to secure some other party to take over and *Page 321 complete the said contract; that the said Opp made every reasonable effort to interest parties in taking over and completing the said agreement for the plaintiffs, but was unable to do so. That defendants alleged that plaintiffs utterly failed to carry out and perform the terms of the agreement by them and "that on or about the latter part of the year 1929 the plaintiffs wholly and completely abandoned the contract and the said mining property, and ceased all operations thereof, and have never resumed any of the said operations and thereupon the contract ceased and terminated" and called attention to plaintiffs' reply which was simply a denial of the new matter in the answer.
The court called the attention of the jury, in detail, to the issues contained in the pleadings, and explaining the written contract, and that plaintiffs alleged "that at some stage of these proceedings and while they were in progress that Opp, being in a hurry to get a deal with a prospective buyer or lessee, proposed to him (Bailey) that he would waive the additional or the completion of the work in tunnel No. 2 as the written contract had provided that he would waive all the balance of that work, if the plaintiffs would pay him $100 and complete the mucking out of the No. 11 tunnel, and the opening through of the cave-in in that tunnel, and timber, so that part of the mine could be investigated and gotten into;" that thereupon he went ahead with the completion of the work in tunnel No. 11, that is the opening through the slides and cave-in during the year 1929 and through the year 1930 and claims to have performed the contract according to the written contract as orally modified.
The court charged the jury that the defendants on their behalf claimed that there was no oral modification of the contract at all; that not long after the Baileys *Page 322 had entered into the written contract it developed that they were unable to carry out the contract and so advised defendants; the Opps claimed by their testimony that the $100 was paid about October, 1929, or thereabouts, and that the notice of abandonment by Mr. Bailey, the actual abandonment on the part of Bailey, occurred about October, 1929.
The court then charged to the jury that the question for the jury to decide is which side has produced a preponderance of the evidence. "If it preponderates in favor of the plaintiffs' contention then the plaintiffs are entitled to recover what they are demanding here. If it preponderates in favor of the defendants' contention, then the defendants are entitled to recover the relief which they are demanding."
It will be seen that the defendants plainly alleged and testified that the plaintiffs abandoned the written contract and failed to perform the same. The plaintiffs plainly alleged and testified that they fully performed the written contract as modified by the mutual agreement. It seems impossible for the jury to have misunderstood this question, notwithstanding whatever we might think in regard to the word "not" or the words "not involved" to which we have referred. We think the requested instruction in substance was given to the jury in different language than proposed by the defendants, and that the issue was plainly and fairly submitted to the jury.
We agree with counsel for defendant, the court should instruct the jury on the law applicable to all theories of the case that are supported by competent evidence.
In other words, the jury were instructed by the court that if the written contract was modified as stated *Page 323 by Bailey, and Bailey performed the contract as modified, he was entitled to recover; and if as claimed by Opp that there was no modification of the contract and that Bailey abandoned the contract and did not perform the work as agreed, the plaintiff could not recover the money.
There is considerable argument in the brief in regard to the time that the change was made and the work was abandoned in tunnel No. 2.
Bailey testified in part as follows:
"Q. After the completion of this 106 feet, what, if anything, was said with reference to additional work in No. 2 (tunnel), was any current work done or was the work suspended?
A. The work was suspended by Mr. Opp's request.
Q. About when was that?
A. That was sometime in October, if I can recall right.
Q. Of what year?
A. Of 1929."
Mr. Opp testified in substance, that one day he was working in No. 2, he (Bailey) said "Mr. Opp, I couldn't get the money from Mr. Gore, and" he says "the bank is going to shut down.
Q. Well go on and tell what happened.
A. Well, we talked things over back and forth and what to do and one thing or other, and he couldn't go ahead with it, he had to quit. That was that part, and then he said to me — I broached that too — I will put it the other way. I said: `I believe, Mr. Bailey, I might be able to help you out'. I knew a party in Portland and he might be able to take up this contract with me; if he would put up $100.00 I would go and do it.
Q. Go on and tell what you did.
A. He give me $100.00 and I went to Portland and couldn't do anything with the party at all, so the thing *Page 324 blew up; that was as far as it went.
Q. Go on and tell what happened after that.
A. Well, there was nothing done there at all. Mr. Bailey stayed on about a month there, as I remember, and it looked like we could get through No. 2. There was a little opening by that time. I said I would like —
Q. You mean — ?
A. No. 11 now. He was alone, he was all alone; it took him a little longer than he figured on, but he got through there along about the first of September. That is my recollection.
Q. Then what did he do?
A. Well, he moved to Medford. Well, that is about all, as I know, that happened after that."
There appears to be no attempt upon the part of either Bailey or Opp to fix the date exactly when the change in the plan of the work was made. Neither do we see that it is very material.
There was a sharp conflict in the testimony and the case was determined by the jury, and we think fairly submitted to that tribunal.
After re-examining the case carefully, we find no reversible error in the record.
The petition for rehearing is denied. *Page 325