Abram & Tracy, Inc. v. Douglas Smith
| Decision Date | 15 June 1993 |
| Docket Number | 93-LW-3657,92AP-1503 |
| Parties | Abram & Tracy, Inc., Plaintiff-Appellant v. Douglas Smith et al., Defendants-Appellees |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
David A. Bressman, for appellant.
Vorys Sater, Seymour & Pease, and Richard D. Schuster, for appellees.
Plaintiff-appellant, Abram & Tracy, Inc., appeals from a judgment of the Franklin County Court of Common Pleas finding in favor of defendants, Douglas Smith and Micromart, Inc. ("Micromart"), on plaintiff's negligence and breach of contract claims.
Plaintiff is a small business engaged primarily in plumbing maintenance and repair. To satisfy its record-keeping needs and to streamline operations, plaintiff entered into a contract with Micromart on May 22, 1987 for the purchase of a Sperry computer, a printer, and bookkeeping and accounting software. In addition to accounting capabilities, the software was capable of storing written histories of plumbing jobs plaintiff performed for its business accounts. Under the contract, Micromart also provided software training and entered certain business accounts into the new computer system. In June of 1987, the system was delivered and installed at plaintiff's place of business.
From June 1987 to October 11, 1990, plaintiff's computer system functioned well and plaintiff had few complaints. Sometime prior to October 11, 1990, Smith contacted Tom Abram, president of plaintiff, and asked Abram for permission to use plaintiff's computer system to do some work for Converse Electric, another Micromart client. Abram agreed and made arrangements for Smith to use the computer.
On October 11, 1990, Smith commenced working on his assignment for Converse Electric. Smith's work required that he have access to the computer's hard disk drive containing plaintiff's accounting and job history data files, and that he remove the files from the disk drive. Before removing the data files, however, Smith made two backup copies of the files onto a tape backup system built into the computer. The backup system consisted of a tape drive and removable data tapes designed to store information contained on the computer's hard disk drive in the event the hard disk drive should fail. As Smith made both backup tapes, the computer verified the accuracy of the data on each of the tapes by running two separateverification tests, a verbose method test and cyclical redundancy test. As it ran each of these tests, the computer displayed visual messages on the computer screen to indicate if any errors were encountered during the backup process. The computer indicated no errors during the backup process on October 11, 1990.
Smith then removed all of plaintiff's files from the computer's hard disk drive and performed his work for Converse Electric. After completing that work, Smith tried to retrieve plaintiff's files from the backup tapes to the hard disk. Unfortunately, the tape drive was unable to read either of the backup tapes. After informing an employee of plaintiff of the problem, Smith sought the assistance of Bruce Rubin, a computer hardware specialist.
Rubin examined the computer and found that the inside of the computer was dirty and that dust had gotten inside the computer's backup tape unit. Rubin testified that iron particles in dust and dirt can affect magnetic components, such as a computer tape drive, and that the dusty conditions inside the computer may have been responsible for the tape drive's failure to read the backup tapes.
On Monday, October 15, 1990, Smith informed Abram of the problems with the tape drive and attempted to restore plaintiff's computer system. Over the next few days, Smith placed the software programs that plaintiff had been using back ~n the computer and customized the software so that it functioned essentially as it had prior to October 11, 1990. Besides the software programs, much of the data that existed on plaintiff's system prior to October 11 were job history files for customer accounts. Because the tape drive could not retrieve data from the backup tapes, Smith was unable at that time to restore the job history files to the computer system. Instead, from mid-October 1990 to mid-December 1990, Smith periodically typed the job history information of a few of plaintiff's most vital rental accounts into the computer. On December 16, 1990, Smith went on a two-week break for the holidays. After trying unsuccessfully to reach Smith during that vacation period, plaintiff filed the present suit on January 4, 1991.
In April 1991, Smith got the backup tapes from plaintiff and made arrangements to attempt to retrieve the data from the tapes. In September 1991, Smith was eventually able to recover the job history files from the backup tapes with a Motorola computer system, and with the assistance of Motorola engineers in Chicago; the data was later transferred onto computer diskettes and loaded back onto to plaintiff's computer.
Thereafter, Abram asked Smith to demonstrate that all the prior data had been restored by calling up certain sample invoices Abram claimed existed on the computer system prior to October 11, 1990. Smith was unable to recall any of the invoices.
In November 1991, plaintiff bought a new computer for its operations with greater storage capacity and capabilities.Presently, plaintiff principally uses its new computer but periodically uses its old computer to call up old job histories.
The trial court dismissed plaintiff's breach of contract claim against Smith prior to trial, conducted a non-jury trial and found for Micromart on plaintiff's breach of contract claim, for both defendants on plaintiff's negligence claims and for defendants on their counterclaim for the unpaid balance due on the contract. Plaintiff appeals therefrom, assigning the following four errors:
In its first, second and third assignments of error, plaintiff contends that the trial court's judgment was against the manifest weight of the evidence. When presented with such an argument, an appellate court will not overturn the trial court's verdict if there is "some competent, credible evidence going to all the essential elements of the case." C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279, syllabus. Adjudging the credibility of the witness, and weighing the value of their testimony is a task best left to the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77.
In its first assignment of error, plaintiff argues the trial court erred in ruling against it on its breach of contract claim. Plaintiff contends Micromart breached its contract because it failed to fulfill its hardware service obligations, failed toprovide operating manuals for the computer hardware, and failed to test adequately the computer equipment during installation.
Initially, plaintiff argues Micromart failed to provide proper maintenance on the computer hardware and failed to inform plaintiff of the need far maintenance. At issue is the interpretation of the word "service" as used in the written contract between the parties.[1] Plaintiff contends that we should interpret the contract as a general service contract and that the word "service" should be interpreted to include hardware maintenance. Micromart argues that the contract does not contemplate hardware maintenance and that it did not breach its contractual obligations. The trial court below found that the contract did not contain any specific service clause for hardware maintenance and that Micromart never agreed to provide such maintenance services.
In a commercial transaction, generally, the meaning of the parties' written agreement should be determined by the language the parties use, but the parties' actions, read and interpreted in light of their previous dealings and usage of trade may also assist in ascertaining the meaning of their agreement in some instances. Karat Gold Imports, Inc. v. United Parcel Service, Inc. (1989), 62 Ohio App.3d 604, 610; Official Comment to R.C. 1301.11 (UCC 1-205).
Generally, a writing should be interpreted as a whole and all the writings that are part of the same transaction should be interpreted together. Restatement of the Law 2d, Contracts (1981) 86, Section 202(1), (2); 2 Farnsworth, Contracts (1990) 255-256, Section 7.10. Looking at the contract in the present case as a whole, we note the term "service" is used only once, and in an introductory paragraph. In the second paragraph, which specifically delineates the "hardware, software, and service" referenced in the first paragraph, no mention is made of service or maintenance, aside from that implied by the warranty provision. Further, the testimony at trial from all the witnesses indicates, and the plaintiff admits in its brief, that the parties never discussed...
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