WELCH & CORR CONSTRUCTION CORPORATION v. Wheeler, No. 72-1294.
| Decision Date | 05 December 1972 |
| Docket Number | No. 72-1294. |
| Citation | 470 F.2d 140 |
| Parties | WELCH & CORR CONSTRUCTION CORPORATION, Plaintiff, Appellant, v. Harris E. WHEELER, Jr., et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Richard B. Couser, Concord, N. H., on brief for appellant.
Before McENTEE, ALDRICH and CAMPBELL, Circuit Judges.
Welch & Corr Construction Corp. ("Contractor") appeals from a judgment in its favor against Harris E. Wheeler, Jr. and Wayne V. Wheeler, d/b/a Wheeler Bros. ("Subcontractor"). The sole issue is whether the district court erroneously understated Contractor's total damages by $4,778.84.
At a jury-waived trial, Contractor established that it had contracted with Subcontractor for the latter to complete the site work at a new high school. The initial contract called for payment by Contractor to Subcontractor of $40,000, it being then understood that Subcontractor would not be required to complete certain work on the athletic fields. When the contract price was later amended to $45,000, Subcontractor agreed to complete the athletic field work also.
Having found that Subcontractor committed a material breach of the contract, the district court, to compute damages, had to determine how much it cost Contractor to complete the work after Subcontractor had defaulted. It was in so doing that the court allegedly erred: Contractor asserts that it should have been allowed $14,044.73 for its labor costs, not the $9,265.89 found by the court.
Appellant recognizes that, to prevail, it must establish that the findings below were "clearly erroneous". F.R.Civ.P. 52(a). It says the court clearly erred by assuming, as stated in its findings, that certain time cards in evidence were a complete record of the labor costs incurred. (The $9,265.89 was calculated directly from the cards.)
Appellant points to relevant portions of the testimony as indicating that only time cards applicable to labor for completion of work covered by the initial $40,000 contract were put in evidence. Appellant's total labor costs for completion of the entire $45,000 amended contract are said to be reflected in the testimony of its president, Mr. Welch. He testified they were $14,044.73.
To hold that a district court's finding of fact was "clearly erroneous", we must, from the record, be left "with the definite and firm conviction that a mistake has been committed." United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). We are not so convinced.
The record strongly suggests that, in relying upon the time cards as the evidence of labor costs, the district court simply rejected Mr. Welch's testimony that labor costs totalled $14,044.73. The district court was aware of Mr. Welch's testimony, as indicated by the court's express reference to it in the finding, but credited only the time card evidence showing $9,265.89, explaining:
"Presumably time cards were kept for all work on the project, and they could have been offered at the trial."
A district court's evaluation of the strength and quality of all the evidence, especially that presented in live testimony subject to cross...
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