Atlantic Bitulithic Co. v. Town of Edgewood

• Decision Date: 01 February 1927
• Docket Number: 5734.
• Parties: ATLANTIC BITULITHIC CO. v. TOWN OF EDGEWOOD.
• Court: West Virginia Supreme Court

137 S.E. 223

103 W.Va. 137

ATLANTIC BITULITHIC CO. v. TOWN OF EDGEWOOD.

No. 5734.

Supreme Court of Appeals of West Virginia.

February 1, 1927

Submitted January 18, 1927.

Rehearing Denied March 14, 1927.

Second Petition for Rehearing Denied April 25, 1927.

Syllabus by the Court.

As a general rule, where either party to a building contract before any performance thereunder, repudiates the agreement the injured party has the election (1) to keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified in the contract for performance sue and recover under the contract; or (2) he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.

The defendant, after employing the plaintiff to grade and pave certain of its streets at stipulated unit prices, refused to permit the work to be done. Thereupon the plaintiff obtained a decree in chancery enjoining the defendant from interfering with plaintiff in the performance of the work "up to the amount of" the funds legally at the disposal of the town. Thereafter the plaintiff performed work which, under the terms of the contract, amounted to the total sum of such legally available funds. Held, the plaintiff is not entitled to recover an additional sum as damages resulting from delay in the performance of the work due to the attempted repudiation of the contract by the defendant.

Error to Circuit Court, Ohio County.

Assumpsit by the Atlantic Bitulithic Company against the Town of Edgewood. Judgment for plaintiff, and defendant brings error. Judgment reversed, verdict set aside, and new trial granted.

Carl O. Schmidt and J. J. P. O'Brien, both of Wheeling, for plaintiff in error.

John J. Coniff and S. M. Noyes, both of Wheeling, for defendant in error.

LITZ J.

Suing in assumpsit, the plaintiff recovered a verdict and judgment against the defendant in the sum of $38,739.

In addition to the common counts in assumpsit, the declaration contains a special count averring that the parties entered into a written contract dated January 9, 1913, whereby plaintiff agreed to furnish materials and labor required in the grading and paving of certain streets, avenues, and lanes in the town, at stipulated unit prices for the completed work; that the defendant, contriving unlawfully and maliciously to injure the plaintiff and cause it great damage, willfully and unlawfully refused to sell the bonds authorized for the payment for the improvements, and would not permit the plaintiff to commence or do any part of the work provided for under the contract until after the plaintiff had procured from this court an order "enjoining the defendant, its officers, agents, and servants from in any manner interfering with said contract awarded to the plaintiff on the 9th day of January, 1913, and from in any manner interfering with said contract or with plaintiff's preparation to do the work mentioned in the said contract, and harassing said plaintiff by resolutions to that effect in council, or in any other manner in said council meetings voting or attempting to discredit the work and material of the plaintiff, or in any manner hindering the plaintiff from performing the contract with the said town of Edgewood in so far as the performance of said contract did not impose liability upon said town of Edgewood in excess of the bonds authorized by the election held in said town of Edgewood on the 24th day of October, 1912, to wit, $54,000, and other available funds"; that within a short time after the order of injunction "the said defendant was required to permit the plaintiff to do" the work; and that by reason of the increased cost of material and labor between the time the plaintiff could have performed the work under the contract, if it had been permitted to do so by the defendant, and the time that it was actually done after the injunction was awarded compelling the defendant to accept the performance of the contract by the plaintiff, the plaintiff was damaged in the sum of $55,000.

A demurrer to the declaration was sustained by the late Presiding Judge Addleman, but, no order having been entered recording the action of the court, his successor, upon motion of plaintiff, overruled the demurrer. Upon the trial of the case the plaintiff adduced evidence to establish the charge that it had been prevented by the defendant from performing any part of the contract until after the granting of the alleged injunction by this court and to show what the work would have cost, if it had been done promptly under the contract, and its cost at the time actually performed, the difference being the amount claimed by the plaintiff. The plaintiff was permitted to recover the actual cost of the work; the verdict being for the difference between that amount and the funds legally at the disposal of the town (which had already been paid to the plaintiff), notwithstanding the decision in the injunction suit that:

"The plaintiff is entitled to the profits of its contract and to enforce the same, and perform the work and labor and furnish the material called for, up to the amount limited by the bonds authorized and other available funds, but that such contract, in so far as it exceeds the amount so limited, is void and unenforceable." Atlantic Bitulithic Co. v. Town of Edgewood, 76 W.Va. 630, 87 S.E. 183.

Under the assignments of error it is contended: (1) That the defendant, having been compelled to accept performance of the contract on the part of the plaintiff, was not liable beyond the express terms of the agreements; and (2) that the plaintiff was entitled to perform the work and furnish the material called for only "to the amount limited by the bonds authorized and other available funds," as provided in the former suit.

Dealing with the first proposition, the learned judge of the circuit court, in a written opinion, states:

"In the first place, defendant contends that the plaintiff could have elected to have brought suit against the town for damages for the town's breach of the

...