W. D. Miller Construction Co. v. Donald M. Drake Co‪.‬

ROSSMAN, Justice. This is an appeal by the defendant, Donald M. Drake Company, a corporation, from a judgment in the sum of $13,638.92 which the circuit court entered in favor of the plaintiff, W. D. Miller Construction Co., also a corporation. The case was tried without a jury and the judgment is based upon findings of fact and conclusions of law. The plaintiff maintains a plant in Klamath Falls from which it furnishes transit-mixed concrete to contractors. The defendant, on June 22, 1955, entered into two contracts with the United States Navy whereby it bound itself to build several buildings at the Klamath Falls air base. Construction of the floors, foundations and other parts of the buildings required the use of transit-mixed concrete. July 12, 1955, the plaintiff and the defendant entered into a contract whereby the plaintiff agreed to deliver to the defendant transit-mixed concrete of the quality specified in the contract between the defendant and the Navy for the work just mentioned. According to the plaintiff, it supplied to the defendant in the period of July 15, 1955, to November 19, 1956, transit-mixed concrete of the required kind and of the value of $66,170.20. It alleged that of that sum $13,638.92 remained unpaid when this action was filed. The defendant not only denied that it was indebted to the plaintiff, but submitted a counterclaim in the sum of $35,515.46 which was based upon averments that the concrete which the plaintiff delivered to the defendant did not meet the terms of the agreement between plaintiff and defendant. The counterclaim also alleged: