163 S.E.2d 205 (Va. 1968), Portsmouth Gas Co. v. Shebar

Citation:163 S.E.2d 205, 209 Va. 250
Opinion Judge:[10] Gordon
Attorney:[7] Harry E. McCoy (Seawell, McCoy, Winston & Dalton; Cooper, Spong & Davis, on brief), for plaintiff in error.
Case Date:September 06, 1968
Court:Supreme Court of Virginia

Page 205

163 S.E.2d 205 (Va. 1968)

209 Va. 250



Martin SHEBAR et al.

Supreme Court of Virginia.

September 6, 1968.

Page 206

Harry E. McCoy, Norfolk (Seawell, McCoy, Winston & Dalton, Norfolk, Cooper, Spong & Davis, Portsmouth, on brief), for plaintiff in error.

H. Lee Kanter, Norfolk (Robert E. Brown, Kanter & Kanter, Norfolk, on brief), for defendants in error.


GORDON, Justice.

We must decide on this appeal whether the trial court erred in setting aside a jury verdict for the defendant, Portsmouth Gas Company, and entering judgment for the plaintiffs, Martin Shebar and others.

The plaintiffs brought this action against the Gas Company, alleging that under a contract dated April 26, 1963 the Gas Company had agreed to sell them chilled water piping as part of the air conditioning system for an apartment project. They asserted that the Gas [209 Va. 251] Company had sold unsuitable piping, thereby breaching its express and implied warranties under the Contract and asked for damages in the amount of $100,000.

The Gas Company admitted that under the Contract it had agreed to sell certain heating and air conditioning equipment to the plaintiffs. The Gas Company denied, however, that it had agreed to sell, or had sold, chilled water piping to the plaintiffs, asserting that the plaintiffs had bought the piping through an independent contractor who was not the Gas Company's agent.

The crucial question before the trial court was whether the heating and air conditioning equipment agreed to be sold under the Contract included the chilled water piping. The answer to that question depended upon a proper construction of the Contract, which reads:

'THIS AGREEMENT, Made this 26th day of April, 1963, by and between PORTSMOUTH GAS COMPANY, a public service corporation, of Portsmouth, Virginia, party of the first part, hereinafter called the 'Seller', and MARTIN SHEBAR, IRVIN H. COHEN, SIDNEY W. COREN, JOSEPH J. GARNER, and H. LEE KANTER (the plaintiffs in this action), parties of the second part, hereinafter called the 'Buyers';

'WITNESSETH: That for and in consideration of the sum of Sixty-five thousand, two hundred seventy-two dollars and sixty-five cents ($65,272.65), to be paid by the buyers in the following manner, namely, Sixty-five hundred and twenty-seven dollars and twenty-six cents ($6,527.26) at and before the signing and sealing of this agreement, receipt of which is hereby acknowledged, and the balance of Fifty-eight thousand, seven hundred and forty-five dollars and thirty-nine cents ($58,745.39), including interest, to be paid in installments of Three thousand seven hundred and four dollars and twenty-two cents ($3,704.22), the first payment to become due six months after date, and then quarterly until paid, the seller doth hereby bargain, sell and deliver

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to the buyers the following goods and chattels, to-wit:

'1. Gas air conditioning and heating equipment:

(a) 15 model 54--450 Bryant Gas Chillers, 4.5 tons each.

(b) 3 model 36--450 Bryant Gas Chillers, 3 tons each.

(c) 51 thermostat kits with 2 speed relays.

(d) 51 model 18--407 cooling coils.

(e) 51 model 54904C06 coil housings.

(f) 51 model 50--393--E counterflow furnaces, or the equivalent.

[209 Va. 252] (g) 18 model 5413D part load controls.

(h) 18 model 675A1003 outdoor thermostats.

  1. 51 Norge gas refrigerators, model 721--880, 11 cu. ft. double door.

  2. 51 Caloric model S351--KX--T ranges with 51 model 943 hoods; 51 model 21 32 double sinks, and 51 model SP--30 splash plates.

  3. 51 Caloric caddies.

  4. 1 Bryant 75--335 unit heater, installed in laundry room.

  5. 1 Ruud model GL82--200 gas water heater for laundry room, but not to be installed.

'Seller will finance installation of heating and air conditioning equipment, which includes chilled water piping, gas piping and duct work, not including electrical work. (Emphasis supplied.)

'Seller covenants and agrees with buyers, that the goods and chattels are of good merchantable quality, and further will warrant title to said goods and chattels to buyers, free from the claims of all persons whatsoever.

'Save as aforesaid, however, the buyers agree to execute a chattel mortgage to Clyde W. Cooper, Trustee, to secure the balance of the purchase price of Fifty-eight thousand, seven hundred and forty-five dollars and thirty-nine cents ($58,745.39), as hereinabove set forth, evidenced by a note in the same amount, bearing same date, and payable in the manner hereinabove prescribed. (Testimonium and signatures follow.)'

The Gas Company contended that the heating and air conditioning equipment to be sold under the Contract comprised only those items listed in clause 1. The words of the Contract, 'the seller doth hereby bargain, sell and deliver to the buyers the following goods and chattels', immediately precede lists of specific items to be sold. Neither the list in clause 1 ('Gas air conditioning and heating equipment') nor the lists in clauses 2 through 6 (other equipment) include chilled water piping.

On the other hand, the plaintiffs contended that the lists of equipment in clauses 1 through 6 do not purport to include all the equipment agreed to be sold under the Contract. They relied upon the succeeding paragraph of the Contract, which reads: 'Seller will finance installation of Heating and air conditioning...

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