This action was originally commenced by the plaintiff, Dyer Brothers Grolden West Iron Works, seeking recovery from the defendant Pederson, and Fidelity & Deposit Company, for the furnishing of structural steel for a large bridge ■ constructed by Pederson under a contract with the city of Seattle; Fidelity & Deposit Company being surety upon the bond furnished by Pederson to secure the faithful performance of the contract, and the payment of laborers,
All parties to the action having proceeded upon the theory that it is of equitable cognizance, the trial court concluded that formal findings of fact were unnecessary, and did not make findings apart from the recitals
. . on or about August 24th, 1915, the defendant Erickson Construction Company entered into a contract with the defendant Hans Pederson for excavation and construction of coffer dams on the said Fifteenth Avenue Northwest Bridge, Seattle, Washington, for the lump sum of $18,000, upon which construction the defendant Erickson Construction Company entered, and that thereafter the said Erickson Construction Company breached said contract and abandoned the said work, and that, as a result of the said abandonment of said work, and the breach of the said contract and the refusal of said Erickson Construction Company to proceed further, the said Pederson was damaged in the extent of $23,369.69, with interest at the rate of six per cent per annum from November 4th, 1916, the same being the cost to the said Pederson to complete the contract upon which the said Erickson Construction Company had entered.
“Thereafter and in due time the Erickson Construction Company filed a motion for new trial, and said motion for new trial having come on for hearing, and having been on the 20th day of November, fully argued and heard, the court, on the 24th day of November, 1919, handed down his decision upon the motion for new trial, finding and holding that the whole case was controlled by section X of article VIII, paragraph 2, of the city charter of the city of Seattle, which reads as follows:
“ ‘Bids may be received for all or any part or division of any proposed contract and no contract shall be sublet except for the furnishing of material without the previous consent of the city council.’ ”
and that Hans Pederson had, in violation of said charter provision, sublet the contract in question to the Erickson Construction Co., and that said subletting, being in violation of the city charter, was void, and that Hans Pederson could- not recover upon said
“It is, therefore, now by the court ordered, adjudged and decreed:
“That the action of Erickson Construction Co. as against Hans Pederson be dismissed, to which counsel for Erickson Construction Co. excepted and except.
“It is further ordered, adjudged and decreed that the action of Hans Pederson on his cross-complaint as against the Erickson Construction Co. be dismissed, to which Hans Pederson excepted and excepts.”
We are not here concerned with the rights of other parties adjudicated by the decree. In so far as these findings may be considered as findings of fact, they were duly excepted to by counsel for Erickson Construction Company. The exception by counsel for Pederson, noted in the decree, is manifestly nothing more than an exception to the court’s conclusion of law that the subcontract between him and Erickson Construction Company was void because not consented to by the city council, as prescribed in the city charter provision above quoted in the recitals of the decree.
It seems to be necessary for us to first answer the inquiry, Was there a subcontract, apart from the question of its validity, entered into between Erickson Construction Company and Pederson, as recited in the decree, for the performance of which, by Erickson Construction Company, it was to be paid by Pederson the lump sum of $18,000 ? That the trial judge was so convinced, treating the question purely as one of fact, there seems no room for doubting, in view of the recitals in the decree, above quoted. A reading of the evidence, as set forth in the abstracts thereof prepared by counsel for the respective parties, convinces us, as
The principal contentions here made by counsel for Erickson Construction Company seem to be that, in any event, the contract between it and Pederson was void and of no effect, because of the failure of the city council to consent thereto; that therefore it is entitled to recover in this action as upon quantum meruit, and have its recovery measured by the reasonable value of the labor and services actually furnished by it to Pederson, irrespective of the compensation therefor specified in the contract; and that, because of the invalidity of the contract, Pederson has no basis upon which to rest his counterclaim for damages by reason of the alleged breach thereof by Erickson Construction Company. Counsel for Pederson contend that the contract was not void, or even voidable, as between him and Erickson Construction Company,- and that therefore he is entitled to damages as against it, because of its breach of the contract. We feel constrained to hold that the contract was voidable at the election of Erickson Construction Company at any time prior to the consenting thereto by the city council, and, when timely so avoided, it ceased to exist or have any controlling influence upon
We think a careful reading of those decisions will render it plain that in neither of them was there involved any question of a subcontract being void or voidable because entered into in violation of a positive provision of statutory law; but that in those cases there was under consideration only the fact of the failure to observe provisions in the principal contract relating to the necessity of consent on the part of public officials to the entering into subcontracts by the principal contractor. Under the peculiar facts of those cases, the subcontracts were recognized as enforcible by the court. This contract might be so recognized if it had been fully performed by Erickson Construction Company, instead of being abandoned by it and thereby rendered void as to obligations arising under it in the future. Being of the opinion that this contract was voidable at any time at the election of either of the parties thereto, it not being consented to by the city council, and when so avoided, as it was by Erickson Construction Company’s abandonment of the work when it notified Pederson of such action, the contract we think could no longer be the basis of a right of action for its breach, though, as we shall presently see,
Notwithstanding the contract was not in law en-forcible, strictly as such, by either party thereto, both parties were proceeding under it, assuming that it was valid and binding as to them, up until the time of the abandonment of the work by Erickson Construction Company, at which time Pederson had paid to it upon, the contract, $9,898, being more than half of the total contract price for the work. At that time, we think it. safe to assert, in the light of the evidence, the work which Erickson Construction Company undertook to-do for the lump sum of $18,000 was approximately half completed. The evidence does not show this fact with exactness, but we think, in view of the total cost of the work and the amount Pederson was compelled to expend in its completion, it is, in any event, fairly certain that Erickson Construction Company was paid by Pederson in the aggregate as much as it was entitled
Now this contract, while prohibited by law, and therefore in a sense against public policy, was not within itself immoral. It was not of that class of contracts which the law condemns in that extreme sense of refusing all claimed relief to the parties thereto rested upon acts performed under and in compliance with its terms. ' In other words, the contract was not of that class as to which the court will leave the parties where it finds them, as to all claimed rights of one as against the other rested upon and growing out of acts done in the performance of the contract. The fact that such a contract is voidable, since it is not immoral, does not mean that one party may keep, without compensation, that which he has received from the other under the contract; nor that one party, after he has rendered service to the other by the doing of acts, free from taint of immorality or want of consideration, as contemplated by the contract, shall have no right of compensation. We think that enforcible legal obligations may be so created in favor of one party to the contract as against the' other, though the contract be voidable and unenforcible as an unexecuted contract. This, we think, is the position we find these parties in, or rather the position they would be in were it not for the fact that the legal obligation arising in favor of Erickson Construction Company, as against Pederson, has been already fully satisfied by Pederson by the payment by him of approximately one-half of the agreed compensation for the work furnished and performed by the Erickson Construction Company, which was, as we have seen, approximately one-half of the work it agreed to furnish and perform.
We conclude that Erickson Construction Company cannot recover, because the compensation it was entitled to receive for work done under its contract with Pederson has been fully satisfied by payment on the part of Pederson; and that, since the contract was rendered nonenforcible as a whole at the election' of Erickson Construction Company, Pederson has no cause of action for breach thereof.
Holcomb, O. J., Tolman, Mitchell, and Main, JJ., concur.