Eimco-Bsp Service Company v. Valley Inland Pacific Constructors, Inc.

This is a diversity action involving a dispute between a contractor, Valley Inland Pacific Constructors, Inc. (VIPCO), and a subcontractor, Eimco-BSP Service Company (Envirotech), over the amount due Envirotech for work it performed in connection with renovation of a sewage treatment plant for the City of Vancouver, Washington. Envirotech claimed that the failure of VIPCO to object to the final account that Envirotech rendered to it constituted an account stated and thereby extinguished VIPCO’s unliquidated damage claim for breach of contract. The magistrate, sitting with consent of the parties entered judgment for Envirotech, and VIPCO appeals.

VIPCO was awarded the prime contract to convert Vancouver’s Westside Sewage Treatment Plant into a secondary treatment facility. Envirotech and VIPCO entered into a contract whereby Envirotech agreed to furnish and install the plant’s heat treatment system. The contract provided that the final payment of the 10% retained would be made to Envirotech 45 days after the work was approved by the architect and the City.

In May 1973 Envirotech learned that the heat exchanger it had installed was unacceptable to the Washington State authorities,…

dissenting:

I must respectfully dissent. In my view the fundamental question in this appeal is *674 whether the parties ever agreed that the plaintiff would be paid the full retention amount without back charges.

The magistrate conducted a several day trial tracing the entire history of the sludge problem. He found that the problem which developed in November, 1973, regarding sludge disposal, was permanently resolved in early February with replacement of the heat exchanger. After that resolution, the plaintiff sent the defendant repeated billings for the full retention, and no objection was ever voiced until June, 1975, when the defendant sent the plaintiff a check for an amount some $60,000 less than the full retention. The magistrate further found that the letter of March 18 was not simply a bill or a settlement offer but was a memorandum of an agreement made between the president of defendant and the plaintiff’s project manager regarding payment of the full $61,900 retention.

I believe the magistrate’s findings and conclusions to be fully supported by the record and would uphold them. I cannot agree with the majority that the record somehow compels us to overturn the factual…

626 F.2d 669 EIMCO-BSP SERVICE COMPANY, Plaintiff-Appellee, v. VALLEY INLAND PACIFIC CONSTRUCTORS, INC., Defendant-Appellant. No. 77-3763. United States Court of Appeals, Ninth Circuit. Submitted March 4, 1980. Decided Aug. 4, 1980. Rehearing Denied Sept. 17, 1980. Elizabeth Yeats, Portland, Or., for defendant-appellant. Clifford N. Carlsen, Jr., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before TANG, SCHROEDER and NELSON, Circuit Judges. TANG, Circuit Judge: 1 This is a diversity action involving a dispute between a contractor, Valley Inland Pacific Constructors, Inc. (VIPCO), and a subcontractor, Eimco-BSP Service Company (Envirotech), over the amount due Envirotech for work it performed in connection with renovation of a sewage treatment plant for the City of Vancouver, Washington. Envirotech claimed that the failure of VIPCO to object to the final account that Envirotech rendered to it constituted an account stated and thereby extinguished VIPCO's unliquidated damage claim for breach of contract. The magistrate, sitting with consent of the parties entered judgment for Envirotech, and VIPCO appeals. 2 VIPCO…