Bender-Miller Co. v. Thomwood Farms, Inc.

• Citation: 211 Va. 585,179 S.E.2d 636
• Decision Date: 08 March 1971
• Docket Number: BENDER-MILLER
• Parties: COMPANY, Inc., v. THOMWOOD FARMS, INC., et al.
• Court: Supreme Court of Virginia

Page 636

179 S.E.2d 636

211 Va. 585

BENDER-MILLER COMPANY, Inc., v. THOMWOOD FARMS, INC., et al.

Supreme Court of Appeals of Virginia.

March 8, 1971.

Herbert L. Karp, Alexandria (Samuel B. Brown, Alexandria, Frank J. Meyer, Falls Church, on brief), for plaintiff in error.

David Hugh Boyd, Fairfax, for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

SNEAD, Chief Justice.

On January 23, 1967 Thomwood Farms, Inc., Samuel F. Thomas and Elizabeth F. Thomas (Thomwood Farms) ¹ instituted an action against Bender-Miller, Inc. (Bender-Miller) for breach of contract. The trial court entered judgment on a jury verdict of $7,895 rendered in favor of Thomwood Farms. We granted Bender-Miller a writ of error to that judgment.

The question involved in this appeal is whether the trial court erred in granting certain Instructions.

Thomwood Farms decided to construct a residential guest dwelling on its property near the town of Middleburg, Virginia. A. Dee Counts, a mechanical engineer, was engaged by Walter A. Macomber, Thomwood Farms' architect, to prepare the mechanical drawings and specifications for the installation of an Arkla heating and cooling system. Thereafter, bids for this project were sought and on December 16, 1964 Bender-Miller contracted with Thomwood Farms to install the system in accordance with drawings and specifications prepared by Counts. On or about July 1, 1965 it completed the installation of the system, and later received the balance due on the total contract price of $42,386.44.

The system, soon after it was placed in operation, failed to function properly. A number of difficulties were encountered. At first it was thought the problems were due to the malfunctioning of temperature controls, but it later developed that this was not the source of the trouble. By June, 1966 the Thomases were totally dissatisfied with the system and so advised Macomber, their architect.

On June 14, 1966 Macomber, Counts, and Roan, the builder of the residence, made an inspection of the system. They decided that another meeting should be had at the residence with all parties concerned. This meeting was had on July 6, 1966. Among those present were Macomber, Counts, Roan, Edward Mernone, who represented Thomwood Farms, Wesley Knight, trouble-shooter for Arkla, and Wallace Hartsook, secretary-treasurer of Bender-Miller. The meeting consumed the entire day and exhaustive tests were made in an effort to pin point the trouble. The conclusion reached was, among other things, that there were defects in the condensing water lines running from the cooling tower to the pump in the basement causing an 'air lock'.

On July 12, 1966 Knight wrote a letter to Counts in which he set forth specific recommendations to make the cooling system function properly. Copies of this letter were sent to Bender-Miller and other parties in attendance at the July 6th meeting. On July 25, 1966 Counts wrote Macomber making his recommendations to correct the system.

Bender-Miller did nothing to correct the system after the meeting on July 6. In August, 1966 Thomwood Farms engaged the services of a consulting engineer and another contracting firm, which was experienced in installing Arkla systems, to remedy the defects. After uncovering the condensing water lines it was discovered that they were badly bent, and the flow of condensing water was being obstructed. This condition resulted from improper installation of the lines by Bender-Miller. The lines were replaced and other defects corrected and thereafter the system functioned properly.

It is conceded that before another contractor was engaged no notice was given nor any demand made on Bender-Miller by Thomwood Farms or its architect to correct the system. Bender-Miller contends that the terms of the 'Service Guarantee' agreed to by the parties required the architect to demand or direct Bender-Miller to make the necessary repairs, and that without such direction it was not required to correct the system. The 'Service Guarantee' provided:

'(A) This Contractor (Bender-Miller) shall deliver the Heating, Ventilating, Air Conditioning and Refrigeration equipment covered by the plans and specifications to Owners complete, and in first class operating condition in every respect. He shall guarantee that the material, equipment and workmanship furnished by him shall be entirely free from defects and that he will repair or replace at his own expense, As may be directed by the Architect, any material, equipment or workmanship in which defects may develop within one year after date of final payment for the work. This Contractor further guarantees that all workmanship and material where not specifically mentioned in the plans and specifications shall be the best of their respective kinds, and that the construction and installation will be in accordance with the best standard practice in every detail.' (Italics supplied).

Over the objection of Bender-Miller, the trial court granted Instruction No. A-7, which follows:

'The Court instructs the jury that should you believe by a preponderance of the evidence that the Defendant, Bender-Miller Company, during the month of July, 1966, had obtained sufficient knowledge concerning the performance of the air-conditioning system from which it could reasonably conclude that a defect existed as a result of its workmanship then it had a duty to repair or correct the defect. If you further believe that after having obtained such information it did not within a reasonable length of time attempt to repair or correct the defect the Plaintiffs had a right to have the defect repaired or corrected without making a demand for performance by the Defendant, Bender-Miller Company, of its obligation to repair or correct the defect.' Bender-Miller objected to the instruction on the ground that it was contrary to the terms of the 'Service Guarantee'. It did not tell...