The opinion
On Petition eor Rehearing
( 2 P. (2d) 1116 )
BROWN, J.
The defendants have petitioned this court for a rehearing. For a full statement of the issues of fact and law, see our original opinion decided June 23, 1931.
By their petition the defendants assert that this court erred in holding that the plaintiffs’ complaint stated facts sufficient to constitute a cause of action, for the alleged reason that it failed to aver or prove
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a consideration for the modification of the contract sued npon, and that the plaintiffs abandoned their contract.
On the other hand, the plaintiffs contend that the contract was not abandoned by them, bnt that they entered upon the performance thereof and proceeded therewith until all the work to be performed thereunder was completed except a few odds and ends which could not be completed at that time because the defendant construction company had not completed the grading. As to the particular work that remained unfinished, we nóte the following testimony of plaintiff Pegan':
‘ ‘ There were about five 10-inch culverts, and a few more head walls to be put in; 25 or 30 feet. The rest of the pipes were in there and were all distributed, and the rest of the pipes were in all of the culverts, and the culverts were completed except these five and a few extra head walls, but the head walls could not be put in on account of the grading not being done. I had to quit until Sweeney had done the grading, and so when I wanted to put in the five pipes — I was working on another culvert — I was going to put in the pipes, and Mr. Libby, the engineer in charge, told me not to put them in * * *. He said that we would have to put them in after the Sweeney company got through with the grade, on account of it being a heavy cut.
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“I couldn’t put them (pipes) in or do anything; so I went and told Sweeney and I said, ‘Do you have those five pipes in there? * * * What are you going to do about them? Do you want me to leave them with you here so that somebody else can put them in, or what?’ * * * And he said, ‘If you have the pipes in there, I will put them in for you, ’ and he said, ‘When I get through with the grading I will charge you the cost of putting them in.’ ”
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Witness further testified that Sweeney agreed to complete the unfinished subcontract and charge the plaintiffs “what it cost to do the work,” and give them credit therefor.
As stated in our original opinion, the trial court found that there had been no abandonment by the plaintiffs of their contract with the defendant construction company. The plaintiffs alleged, and the court found, in substance, that, after the execution of the contract between the plaintiffs and defendant Sweeney Construction Company, the plaintiffs entered upon the performance thereof and proceeded therewith in accordance with all its terms and duly performed all the conditions thereof until on or about November 17,1926, when all the work to be performed under the contract was completed except putting in two or three pipe culverts and a few odds and ends which could not be done or completed until several weeks or months thereafter, whereupon it was mutually agreed between the plaintiffs and defendant Sweeney Construction Company that the construction company would, and it thereafter did, complete it and charge them for the expense and give them credit for the work to be done and performed by plaintiffs under their contract, and plaintiffs have fully and faithfully performed all the terms and conditions of their contract in strict compliance therewith and with the orders of the state highway commission and its engineers in charge of the work, except as modified as above set out, and the work was performed satisfactorily to, and accepted by, the state highway commission and its engineers.
From the very full and complete and carefully considered findings of fact, the trial court summarized the cause and found that the plaintiffs were entitled
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to recover from defendant Sweeney Construction Company the sum of $32,677.18, and that the total credit due the defendant on its contract was $28,548.47, leaving a balance due the plaintiffs of $4,128.71.
The defendants assert in their petition for rehearing that—
“Bather than supporting a judgment of $4,128.71, the evidence conclusively shows that the sum is the total earned by the Sweeney company during 1926-1927-1928 while finishing the contract for culverts and masonry, and was awarded to plaintiffs although earned by the Sweeney company, without allowing the Sweeney company a dime for doing the work;
# # & # *
“That Sweeney did all the work on the contract after July, 1926, amounting to several thousand dollars.”
Scan this record from beginning to end, and this assertion remains unproved. The facts are to the contrary. The work done in 1926 was done by the plaintiffs. In 1927 the defendant construction company did some work in completing the “odds and ends” under the modified contract as above set out, and, as we have stated, the cost of this work, as well as a fee of $100 for overseeing the work, was charged to the plaintiffs. Sweeney himself testified that “Gassman (one of plaintiffs) was around there (the work) up until probably in November, 1926,” but that Pegan went away in the latter part of July of that year. Concerning the work that was unfinished at that time, Sweeney testified:
“Well, I think there was several culverts — I think about two culverts and some head walls, and quite a lot of pitching. Things like that — to fix the drains into the culverts. There had been something done along that
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line, but that is the last work I had on the job, and that was not done, and there was one culvert that had not been extended out far enough.”
The contract was never abandoned by plaintiffs, but, on the other hand, was fully carried out by the defendant construction company as modified by the parties thereto. From the record it appears that the contract for the construction work, which of course included the work contracted by the plaintiffs, was finished and accepted August 29,1927.
From a careful analysis of the record in this case, we are satisfied that the findings and conclusions of the trial judge are accurate and proper.
In our original opinion we quoted from 13 C. J., §607, “Contracts”, where the editor discusses the necessity for a consideration in a modified contract. Continuing, we now call attention to the following excerpt from the same section:
“Where a modified agreement has been fully executed, it will not be disturbed, for a want of consideration. ”'
We think, however, that there was a valid consideration for the modification of the contract in this case. Furthermore, the contract has been fully performed, and the position taken by the defendants can not be maintained. 2 Page on Contracts, § 748.
The petition for a rehearing will be denied.
Bean, C. J., Belt and Campbell, JJ., concur.