I cannot concur in the decision of the majority upon a very cursory review of the petition and affidavits to vacate the judgment.
The motion for a new trial had a supporting affidavit made by Norman E. Greene, head partner of the principal contractor, which, in effect, alleged that Bryant performed his work in lacquering the Becker building in a very incompetent and unskilled way, and, because of his unworkmanlike manner in doing the work, the lacquer applied to the walls of the building came off and, because of his poor workmanship, Greene discharged him from the work.
The same Greene made a supporting affidavit to the petition for vacation to the effect that the contract introduced in evidence by respondents at the trial was not the contract under which Bryant had been working up to October 26, but that he had been theretofore working under a contract which was attached to the affidavit as an exhibit, which was dated in September, 1926, under and by virtue of which Bryant agreed to do the lacquer work on the woodwork and walls in the Becker building and agreed to furnish labor and materials to be used therein; that thereafter Bryant failed to perform the contract in a skillful and workmanlike manner or to furnish the materials as therein claimed, or to furnish skilled labor or proceed with the work in a speedy and diligent manner, and for those reasons and not on account of the alleged defectiveness of any paints or lacquer, and without any reference to or account of such lacquers, it became necessary to discharge Bryant from the job; that he was discharged, the contract by mutual consent canceled, and all moneys due Bryant thereunder then and there paid to him; that thereafter he was employed as a workman at a stipulated wage, and that all moneys due him as a wage earner were paid him and in fact he had been overpaid *Page 170 on account thereof. The contract of October 26 is the contract under which the stipulated wages were paid.
It appears in the petition to vacate the judgment and by supporting affidavits that appellant discovered after the trial of the case that the materials used by Bryant in the lacquering of the Becker building were, in fact, purchased from a Tacoma house, who, not having been paid a balance due therefor, filed a lien for $1,891.63, against the Becker building, which was thereafter, on June 23, 1927, satisfied of record.
It further appears in the petition to vacate that counsel for appellant had been informed by counsel for respondents that respondents would subpoena N.E. Greene, the head of the Greene Engineering Company and the principal contractor, as a witness for respondents at the trial of the case on December 12, upon which appellant depended. Respondents failed to subpoena Greene and he was not at the trial. The effect of this, although doubtless unintentional on the part of counsel for respondents, was to mislead counsel for appellant to its prejudice. That situation constituted constructive and collateral fraud. It constitutes more than mere perjury. It is patent from the affidavits of Greene that his testimony would have been very material and favorable to appellant.
It is apparent that appellant could have introduced evidence before the trial court, had the petition to vacate and a new trial been granted, tending to show that the contract relied upon by respondents was not the contract under which the labor and materials were performed and furnished; that Bryant was not discharged by reason of defective materials, but because of unskillful and unworkmanlike performance of his work; that the materials claimed by Bryant to have been purchased from appellant and used in the lacquering *Page 171 of the Becker building were, in fact, not the materials used.
All of these facts were very material to a defense on the part of appellant against the first counterclaim of respondents, which was the only counterclaim that the trial court considered in any way supported by competent evidence.
Upon this showing, in all fairness, the trial court should have set aside the judgment and granted a new trial in order to receive the evidence of appellant in controversion of the counterclaim.
For these reasons I dissent and conclude that the judgment should be reversed and the cause remanded for a new trial.