Bennion v. LeGrand Johnson Const. Co.

• Decision Date: 05 June 1985
• Docket Number: No. 18933,18933
• Citation: 701 P.2d 1078
• Parties: Harry BENNION and Barbara Bennion, Plaintiffs and Respondents, v. LeGRAND JOHNSON CONSTRUCTION CO., Johnson Ready Mix Concrete Company a Utah corporation, Defendants and Appellants.
• Court: Utah Supreme Court

Page 1078

701 P.2d 1078

Harry BENNION and Barbara Bennion, Plaintiffs and Respondents, v. LeGRAND JOHNSON CONSTRUCTION CO., Johnson Ready Mix Concrete

Company a Utah corporation, Defendants and Appellants.

No. 18933.

Supreme Court of Utah.

June 5, 1985.

Robert H. Henderson, Raymond M. Berry, Lyle W. Hillyard, Salt Lake City, for defendants and appellant.

N. George Daines, Logan, for plaintiffs and respondents.

STEWART, Justice:

The plaintiffs, Harry and Barbara Bennion, brought this action against the defendant, LeGrand Johnson Construction Co., for supplying defective concrete. A jury awarded the Bennions damages in the amount of $47,444.

In 1978, the Bennions began to construct a service station in Garden City, Utah. Johnson Construction mixed and supplied concrete for the foundations. The concrete was poured by the Bennions' subcontractor, Mack Madsen. When the concrete began to harden, Mr. Bennion and his design engineer, Larry Olsen, noticed that the foundation, footings, and piers were uncharacteristically weak. In some places "J" bolts pulled clear through the concrete, and in one place a large chunk of concrete simply broke off.

Mr. Bennion contacted Johnson Construction, which conceded the concrete was weak but maintained that Madsen had caused the weakness by mixing extra water with the concrete before pouring it. Nevertheless, Johnson Construction agreed to take steps to remedy the defects. Specifically, Johnson Construction accepted a proposal by Olsen to (1) furnish free of cost more concrete, which would be mixed at a higher bag-to-water ratio to replace certain parts of the foundation and buttress others; (2) pay Mack Madsen for his additional labor in pouring the concrete; (3) pay Larry Olsen for supervising the foundation work; and (4) supply burlap bags, which would be placed on the existing concrete and wetted down to hydrate the concrete. Both Olsen and Johnson Construction told Bennion that the replacement of parts on the foundation and the buttressing of other parts of the foundation would solve the problem. After the replacement and buttressing were completed, the Bennions proceeded to erect the service station on the foundation. After they had begun using the service station, they discovered that the foundation was still deteriorating and, despite the remedial measures, was weak in places.

The Bennions refused to pay for the concrete and other materials supplied by Johnson Construction and sued Johnson Construction for breach of contract and negligence, alleging that the concrete was of an inferior quality and unsuitable for use in construction. ¹ Johnson Construction counterclaimed for $5,980.27, the cost of the concrete and other materials furnished.

At trial, the Bennions called Professor Derle Thorpe of Utah State University, who testified that the composition of the concrete was substandard because of contaminants. It contained two salt compounds, sodium chloride and ammonia nitrate, and double the acceptable amount of silt. He further testified that too much water had been mixed with the concrete and that the foundation would continue to deteriorate "until it's gone."

The case was submitted to the jury on theories of accord and satisfaction, negligence, and breach of warranty. The jury found by a special verdict that the parties had not resolved their dispute by an accord and satisfaction; that Johnson Construction was guilty of negligence and breach of an express or implied warranty and that it had proximately caused plaintiff's damage; and that the Bennions were negligent but that their negligence was not a proximate cause of the damage. The jury also found that the defendants were 80% negligent and the Bennions were 20% negligent. Damages were fixed at $47,444, the amount necessary to disassemble the service station, replace the footings and piers, and rebuild the service station. The trial court offset those damages by the amount of the counterclaim, which the Bennions stipulated Johnson Construction was entitled to.

On appeal, Johnson Construction argues that there was error in the trial proceedings because (1) the jury erred in failing to find an accord and satisfaction; (2) the special verdict was inconsistent; (3) the $47,444 damage award was the result of passion and prejudice; and (4) the trial court should have ordered interest and attorney fees on the defendant's counterclaim. Although the defendant states in the caption to one of its arguments that the evidence is insufficient to justify the verdict, the point is not argued in the text of the brief and therefore, we decline to address that issue on this appeal.

I.

An accord and satisfaction arises when the parties to a contract mutually agree that a different performance than that required by the original contract will be made in substitution of the performance originally agreed upon and that the substituted agreement calling for the different performance will discharge the obligation created under the original agreement. Sugarhouse Finance Co. v. Anderson, Utah, 610 P.2d 1369, 1372 (1980). Accord Cannon v. Stevens School of Business, Inc., Utah, 560 P.2d 1383, 1386 (1977). See also Restatement (Second) of Contracts section 281 (1981); 1 Am.Jur.2d Accord and Satisfaction section 1 (1962). The obligation discharged may arise out of contract, quasi-contract, tort or some other theory of recovery. Needless to say, the original obligation, for which the new obligation is substituted, could have been the basis for a damage action but for the accord and satisfaction. 6 Corbin on Contracts section 1276 (1962). A party alleging accord and satisfaction has the burden of proving its elements. Messick v. PHD Trucking Service, Inc., Utah, 615 P.2d 1276 (1980).

The Bennions asserted at trial that Johnson Construction promised that the remedial measures it would undertake would, in fact, remedy the defects. Harry Bennion testified that his initial reaction to the defective concrete was to tear it down and replace it, but that Olsen and Dick Sackett, an employee of Johnson Construction Company, had told him that the remedial measures would "take care of the problem" and provide a solid and adequate foundation. Bennion stated that without those assurances, he would not have permitted Johnson Construction to continue on the project.

Johnson Construction argues, on the other hand, that Harry Bennion agreed to release Johnson Construction from further liability for the defects in the concrete if Johnson Construction would complete the remedial measures proposed by Olsen. The assertion is based primarily on Sackett's testimony that "Mr. Bennion agreed that if we would go through and do what Mr. Olsen had prescribed that he would feel good and happy about our settlement."

Where evidence is in conflict in a jury trial, we assume that the jury believed those facts that support its verdict, Ute-Cal Land Development Corp. v. Sather, Utah, 605 P.2d 1240, 1245 (1980), and we view the facts and the reasonable inferences that arise from those facts in a light most supportive of the jury's verdict, Cintron v. Milkovich, Utah, 611 P.2d 730, 732 (1980); Gossner v. Dairymen Associates, Utah, 611 P.2d 713, 715 (1980). In refusing to find an accord and satisfaction, the jury did not transgress its prerogatives. The evidence certainly was not such as to require a conclusion of accord and satisfaction.

II.

Johnson Construction argues that the trial court erred in not granting a new trial because the jury's answers to interrogatories were inconsistent. The case was submitted to the jury on negligence and breach of warranty theories, as well as accord and satisfaction.

In answer to special interrogatories 5(a) and 5(b), the jury found that the Bennions were negligent, but that their negligence was not a "proximate cause" of their damages. In answer to interrogatory 7(b) the jury found that Bennions' negligence was a cause of the Bennions' damages to the extent of being 20% at fault. Johnson Construction argues that the answer to 5(a), that plaintiffs were negligent, is inconsistent with 5(b), that their negligence was not the proximate cause of the damage, and that the answer to 5(b), that plaintiff's negligence was not a proximate cause of the damage, is inconsistent to the answer to 7(b), that plaintiff's negligence was a 20% cause of the damage.

The answers to questions 5(b) and 7(b) are not irreconcilably inconsistent. Where the possibility of inconsistency in jury interrogatories or special verdicts exists, the courts will not presume inconsistency; rather, they will seek to reconcile the answers if possible. Moore v. Burton Lumber & Hardware Co., Utah, 631 P.2d 865, 869 (1981); Weber Basin Water Conservancy District v. Nelson, 11 Utah 2d 253, 256, 358 P.2d 81, 83 (1960).

In our view, the answers to interrogatories 5(a), 5(b), and 7(b) can, and therefore must, be read harmoniously. Certainly there is no inconsistency necessary or otherwise, between findings of negligence and no proximate cause. See Moore v. Burton Lumber & Hardware Co., 631 P.2d at 869; Van Cleve v. Betts, 16 Wash.App. 748, 559 P.2d 1006, 1012-13 (1977). Nor was the jury's answer to interrogatory 5(b), that plaintiffs were not a proximate cause of the damage, inconsistent with the answer to 7(b), that plaintiffs were "a cause" of the damage. Proximate cause is a legal construct calling for a legal conclusion based on various factors in addition to an actual cause-effect relationship. It is common place in the law that an act, omission, or force may be an actual cause, but not a proximate cause. Since the jury may well have so found, we cannot conclude that there is an irreconcilable inconsistency.

Furthermore, Johnson Construction failed to object to the verdict before the jury was discharged. When special interrogatories or verdicts are ambiguous, counsel has an obligation either to object to the filing of the verdict or to move that the cause be...