[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 541 This is an action by plaintiff to recover an alleged balance due on a contract for the construction of an apartment house in Klamath Falls, Oregon. It is alleged that plaintiff built the building under a written contract, set out in full in the complaint, in which defendant agreed to pay the cost, plus 15 per cent, of the labor and materials that he used under said contract, which amounted to the sum of $36,852.85, and that he has been paid $25,437.67, leaving a balance of $11,415.18 due, for which plaintiff demands judgment with interest from September 1, 1927.
The material parts of the alleged contract are (the contractor being the first party):
"The first party agrees to construct for the second party said apartment house according to plans and specifications as prescribed by the second party and in such manner and of such material as the second party may, from time to time prescribe, and the first party shall, with all reasonable diligence, proceed to and complete the construction of said apartment house in a good and workmanlike manner."
* * * * * *Page 542 "The first party shall protect and save harmless the second party from all liens and damages whatsoever in connection with the construction of said apartment house."
* * * * * "It is understood that the cost of construction of said apartment house shall include any extra expense or cost which may be incurred by reason of any alterations or changes in the construction of said apartment house which the second party may cause from time to time to be made."
To this complaint the defendant filed her answer which was a general denial of all the allegations of the complaint; "except such as is hereinafter specifically admitted, otherwise stated or qualified."
For a further and separate answer and defense, defendant alleged in effect: That the written contract set out in plaintiff's complaint was not all of the contract, nor did it truly state the terms of the agreement under which the building was constructed. That under a set of plans and specifications furnished by plaintiff, he in writing agreed and guaranteed to construct said building according to said plans and specifications, at a cost to defendant not exceeding $31,000. That plaintiff began the construction of said building on March 29, 1927. That in the construction, plaintiff breached the contract in many particulars. The answer specifies and itemizes the different parts of the structure which were not built according to the plans and specification, and the amount of damage she suffered thereby, including certain parts that were not finished, totaling the sum of $21,408.91.
For a second and separate answer and defense, defendant attempted to plead fraud on the part of plaintiff in procuring her signature to the contract, and alleges a damage in the sum of $21,408.91, and *Page 543 attempted to plead an estoppel by such fraud. The prayer of the answer and counterclaim asks for judgment on the first counterclaim for $21,408.91 and for the same amount on the second separate answer and counterclaim.
A copy of the letter which defendant claims was a part of the contract was attached to her answer, marked exhibit "A", and reads as follows:
"April 4, 1927.
"Dear Mrs. Jackson:
"Your request for some understanding in writing as to the cost of the building which I am to erect for you in Klamath Falls is hereby submitted.
"The building will cost you $31,000. The loan company have guaranteed me $28,000 on the plans and specifications submitted to them and say that they will increase this when the building is completed. However, I am confident that I can get a loan large enough to cover the cost of the building.
"The loan company have agreed to give me a second mortgage to cover any incidental expenses that might occur, such as furnishing, etc.
"This letter is to guarantee that you will be able to pay back the $3,000 that you were forced to borrow. Trusting this letter is as you want it, I am,
"Yours very truly, "F.D. Turner, Builder."
There is also a copy of the specifications attached to the complaint and marked exhibit B.
To these counterclaims plaintiff filed a reply denying all the material allegations therein.
On these issues the case was tried to a jury which returned a verdict in favor of defendant for the sum of $2,500. Judgment was entered in accordance with the verdict. Plaintiff appeals. *Page 544
Upon the close of the testimony, plaintiff moved for a directed verdict on the ground that there was no evidence to contradict plaintiff's claim because defendant failed to introduce any evidence of damages sustained under the contract alleged in the counterclaim. The motion was denied and plaintiff excepted.
The case was tried by plaintiff on the theory that defendant could not show by parol evidence that the letter marked exhibit "A" was signed at the same time and as a part of the contract entered into between the parties, for the reason that the letter was dated April 4, and the contract was dated April 5. The trial court agreed with plaintiff in this respect. However, determining the case on the appellant's theory upon which it was tried in the trial court, there was still enough left in defendant's answer upon which she could recover damages. There is no serious dispute that the specifications and plans introduced in evidence were the plans and specifications in accordance with which the building was to be constructed.
The plaintiff agreed to carry out his contract, "with reasonable diligence and in a good workmanlike manner." If he failed to do this and by reason thereof damages ensued, defendant would be entitled to recover. There was not such a divergence between the contract pleaded by defendant and the one pleaded by plaintiff, aside from the letter guaranteeing that the total cost should not exceed $31,000, as to prevent defendant's recovery. It was not error to permit defendant to introduce evidence showing wherein the plaintiff failed to comply with his contract either by poor workmanship or by negligently leaving undone what he agreed to do. The cost of supplying what was left undone would not be the measure of damages, but such evidence was admissible to show that what was *Page 545 omitted was not a matter of small moment. It would tend to show that plaintiff materially failed "to proceed to and complete the construction of said apartment house in a good and workmanlike manner." It was therefore competent to show that plaintiff failed to "complete" his contract, not in minor details but to a substantial extent. Before plaintiff could recover under his contract, it was necessary for him to show that he had completed the building in accordance with the plans and specifications, and any evidence that tended to refute this was competent. With such evidence properly in the case, the court did not err in refusing to direct a verdict.
Appellant's counsel strongly contends that in any event, under the theory upon which the case was tried, defendant failed to introduce evidence of damages in an amount sufficient to offset the amount claimed in the complaint and of which there was some evidence tending to prove. Plaintiff is not suing on a quantum meruit, but on the completed contract. There was therefore a question for the jury to determine, whether he had completed his contract so as to justify them in allowing him the plus 15 per cent. There is nothing in the pleadings, nor in the evidence tending to show that plaintiff was in any way hindered from completing his contract. On the other hand, the pleadings of defendant allege failure to perform, and there is some testimony tending to support the allegations of the answer.
Plaintiff saved an exception to the court's instruction:
"If there is a conflict in the evidence as to the terms of the contract made between the plaintiff and defendant, then it is the duty of the jury to determine the intention of the parties; and in arriving at the intention *Page 546 of the parties, the jury have the right from the evidence to look to the circumstances under which the contract was made, the subject matter, and the objects the parties intended to accomplish."
It would perhaps have been safer to have instructed the jury that there was a conflict of testimony regarding the contract. Defendant claimed that the plans and specifications she introduced in evidence were the ones by which the contract should be covered. The plaintiff denied that allegation. It was a question for the jury to determine whether the plans and specifications, so introduced, were actually a part of the contract between the parties. It was not error to give the instructions complained of.
The trial court was really in error in not permitting defendant to show that defendant's exhibit "A" was a part of the contract and a contemporaneous agreement. It is immaterial that it was not signed by defendant so long as it was accepted and acted upon by her.
"An agreement may be evidenced by several different writings, which when connected, show the parties, subject matter, terms and consideration." Spencer v. Bales, 108 Or. 339 (216 P. 746).
When the two writings are executed contemporaneously, "covering the same subject matter, they will be construed together as constituting one agreement." Temple v. Harrington, 90 Or. 295 (176 P. 430); Kinney v. Scheussel, 116 Or. 376 (239 P. 818);Hattrem v. Salmon River Improvement District, 132 Or. 297 (285 P. 231).
The date upon which an instrument was executed may be shown by parol. In the instant case, defendant offered to show by parol that the date of the execution of defendant's exhibit "A" was different from *Page 547 that stated thereon. This she had a right to do. It was not varying the terms of the instrument. Regardless of the date of signing, the execution was not complete until delivery.
"The execution of a writing is the subscribing and delivering it, with or without affixing a seal." Oregon Code 1930, § 9-705.
Taking the view we do of the pleadings and evidence, the judgment of the lower court should be affirmed, and it is so ordered.
BEAN, C.J., RAND and BROWN, JJ., concur.