52 Wn.2d 174, DAVID KUYATH, Respondent, v. ANDERSON CONSTRUCTION COMPANY, Appellant

[No. 34475. Department One.      Supreme Court      April 17, 1958.]

DAVID KUYATH, Respondent, v. ANDERSON CONSTRUCTION
                         COMPANY, Appellant.1

[1] APPEAL AND ERROR - REVIEW - FINDINGS. Findings of fact which are supported by the record will not be disturbed.

[2] SAME - REVIEW - HARMLESS ERROR - EXCLUSION OF EVIDENCE. In an action on contract and a cross-action for damages resulting from an alleged breach thereof, the exclusion of evidence offered by the defendant to prove general damages, if error, was not prejudicial, where the trial court found that there had been no breach by the plaintiff.

Appeal from a judgment of the superior court for Clark county, No. 31267, Langenbach, J., entered June 19, 1957, upon findings in favor of the plaintiff, in an action on contract, tried to the court. Affirmed.

Dale W. Read, for appellant.

Wilkinson, Gadbow & Frank (John Wilkinson, of counsel), for respondent.

FINLEY, J. -

The defendant, Anderson Construction Company, was the prime contractor on the construction of a fish cultural station for the United States fish and wild life service at Carson, Washington. The plaintiff, David Kuyath,


1 Reported in 324 P. (2d) 264.

[2] See 3 Am. Jur. 585.

 Apr. 1958]              KUYATH v. ANDERSON CONSTR. CO.      175

d/b/a Columbia Excavating Company, was the excavation subcontractor on the job.

Upon completion of the work, a dispute arose between the parties over the amount owing to Kuyath. Eventually, Kuyath filed suit for a claimed balance of $12,228.25. Anderson Construction Company filed an answer and cross-complaint, alleging that Kuyath had breached the contract by reason of untimely performance, and claiming damages in excess of $15,000.

The trial court entered judgment for Kuyath in the amount of $7,275.09 and dismissed the Anderson Construction Company's cross-complaint with prejudice. Anderson Construction Company has appealed.

[1] With one exception, appellant's assignments of error relate to findings of fact. Since the findings of fact are supported by the record, we will not disturb them. Croton Chemical Corp. v. Birkenwald (1957), 50 Wn. (2d) 684, 314 P. (2d) 622.

[2] The remaining assignment of error relates to the trial court's exclusion of evidence which was offered by appellant to prove general damages resulting from Kuyath's breach of the contract. The trial court found that there had beef no breach by Kuyath; therefore, if the exclusion of the proffered evidence was error, it was not prejudicial.

The judgment of the trial court should be affirmed. It is so ordered.

HILL, C. J., MALLERY, OTT, and HUNTER, JJ., concur.

September 16, 1958. Petition for rehearing denied.