On August 31, 1921, the defendant, as party of the first part, and the plaintiff, as party of the second part, executed the following contract, omitting signatures:
"This contract and agreement drawn this 31st day of August, 1921, between H.W. Weber, the party of the first part, and Andy Hagman, party of the second part, to do certain work specified below on the California State Highway, known as headquarters camp.
"The party of the first part agrees to pay the party of the second part 65¢ per cubic yard for all rock delivered to the crusher of said H.W. Webber's quarry but said rock not to exceed a size that will go into crusher without re-breaking. The party of the first part further agrees to pay the party of the second part $31.50 to do all stripping of said surface of quarry. Further agrees to furnish steel, blacksmith shop, rails and car for said above work with no cost to the party of the second part.
"The party of the second part agrees to deliver the above rock as specified by the State Highway Engineer from time to time for the above sum of 65¢ a yard, to do all stripping, according to specifications of the Engineer and deliver not less than 200 yards per day. The party of the second part further agrees to furnish everything to carry on said work excepting what is mentioned above in Paragraph of party of the first part, further agrees that all breakage caused by any blasting of said plant which party of the first part will construct at said quarry that party of the first part will be responsible for all costs of repairs and breakage caused by any blasting.
"The party of the first part agrees to pay to the party of the second part the first day of every month 80 per cent of the amount earned in the previous month and hold the balance of 20 per cent till the above contract is completed."
The complaint is to the effect that pursuant to that contract the defendant delivered 4,007 yards of *Page 352 rock and in all respects fully complied with the terms of the said contract and that the work performed amounts to $2,604.55, of which the defendant has paid $1,165.44, leaving a balance due the plaintiff and unpaid in the sum of $1,439.11. The answer denies all the allegations about performance of the contract and balance due, denies that the contract above quoted and attached to the complaint as Exhibit "A" contains the whole of the agreement, and avers that the real contract is contained in the further and separate answer. The substance of the separate answer is that the actual agreement was for the delivery of 8,000 cubic yards of rock for highway purposes on a certain section of the California State Highway, then being constructed, and for which the defendant had a contract, and that the amount to be delivered and the quality of the rock and freedom from dirt was omitted by mutual mistake.
Assigning as a breach of the contract as the defendant says it should be, the answer contains this allegation:
"That the said plaintiff not only furnished rock contrary to specifications, as aforesaid, but violated the said agreement by moving off from the said quarry and refusing to deliver rock according to the terms of said agreement, and by such deliberate, malicious and wrongful action, the defendant herein was put to a large expense; that instead of delivering to said crusher at least 8,000 cubic yards of rock, the defendant actually delivered 2913 cubic yards, leaving the defendant herein to otherwise provide for the delivery to said crusher of 5087 yards; that the said defendant has been obliged to provide for such delivery at an expense of $1.35 per cubic yard, whereby this defendant has been damaged in the sum of $3560.90." *Page 353
The prayer of the answer is for reformation of the contract and for judgment against the plaintiff for damages. A reply denies the new matter in the answer. The Circuit Court made findings of fact whereby the writing was reformed so that it should require the plaintiff to deliver rock free of dirt so as to pass the inspection of the highway engineer in charge of the district, but refused to reform it so as to require the amount to be specified. The findings of fact then make allowance for the rock delivered and make sundry deductions for damages and payments, leaving a net balance due the plaintiff in the sum of $703.43, for which judgment was entered, and the defendant appeals.
The substance of the defendant's contention is that the plaintiff abandoned the work before it was completed and did not deliver 8,000 yards of rock, on account of which the defendant was compelled to incur an additional expense over the contract price in completing his own contract in contemplation of which the stipulation was entered into between the plaintiff and the defendant.
The testimony of the defendant himself is to the effect that the writing was drawn up at his own dictation some two or three weeks after the plaintiff began work and submitted to the latter for his signature. Asked by counsel the following question:
"Q. Did he make any objections to it at the time?" the defendant answered thus:
"A. None whatsoever, with the exception of yardage. He said, `Why didn't you put in the full amount of yardage?' and I says, `That ain't necessary, Hagman, I forgot it. I can put it in if you want it, you have got the whole job. It is 8000 yards,' and I says, *Page 354 `If we get the other job it will run into more yardage, which it has.'"
Under the view we take of this testimony it excludes the idea of mutual mistake, upon which a court of equity will reform an instrument. The attention of both parties was directed to the particular matter involved and they executed the contract without putting in that provision. Under such circumstances the provision of Section 713, Or. L., applies:
"When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of the agreement, other than the contents of the writing, except in the following cases:
"1. Where a mistake or imperfection of the writing is put in issue by the pleadings; * *"
The parties are in direct contradiction of each other about any specified amount of rock which the plaintiff was to furnish, and in view of the statement above quoted to the effect that the matter was discussed at the time but not put into the writing, the situation amounts to a failure of proof on the part of the defendant of his allegation of mistake in that respect.
Without the contract being reformed to include the specified amount of 8,000 yards of rock to be delivered, the defendant is without basis to recover for damages for the increased cost over the contract price, which he incurred in furnishing the balance to complete the delivery of the 8,000 yards. For this reason the decision of the Circuit Court must be affirmed. AFFIRMED.
McBRIDE, C.J., and RAND and COSHOW, JJ., concur. *Page 355