Bischoff v. Francesa

• Decision Date: 06 December 1949
• Docket Number: (No. 10155)
• Citation: 133 W.Va. 474
• Court: West Virginia Supreme Court
• Parties: Robert E. Bischoff, et al. v. John Francesa, et al

133 W.Va. 474

Robert E. Bischoff, et al.

v.John Francesa, et al

(No. 10155)

Supreme Court of Appeals of West Virginia.

Submitted October 4, 1949.

Decided December 6, 1949.

1. Evidence

When a written contract is unambiguous and so clear that the intent of the parties and its legal effect can be ascertained from its express terms, extrinsic evidence of conversations, occurring contemporaneously with, or prior to, the execution thereof, is inadmissible to explain or vary the terms of the contract, in the absence of fraud or other vitiating circumstance.

2. Contracts

Where, in the construction of a written contract, general words follow words of a particular and specified meaning, such general words are not to be construed in their widest extent, but are held to apply only to things of the same general kind as those specifically mentioned.

3. Contracts

In the interpretation of written instruments "the express mention of one thing implies exclusion of another, expressio unius est exclusio alterius * * *." Harbert v. County Court of Harrison County, 129 W. Va. 54, 64.

4. Evidence

The burden of proving an oral modification of a written contract is on the party seeking to establish such modification, and such party must demonstrate by clear and positive evidence that the minds of the parties definitely met on the alteration.

5. Modification

In the absence of a mutual agreement, based on a valid consideration, establishing modification of a written contract, there can be no subsequent modification of such a contract without consideration, and the mere promise of one of the parties to perform what he is already bound to do under the terms of the contract is not a sufficient consideration,

6. Interest

In an action or notice of motion for judgment proceeding brought to assert a demand for work under a construction contract, if plaintiffs' demand is liquidated, or, if not liquidated, can be readily ascertained by computation, interest thereon should be allowed from the date when, under the terms of the contract, payment should have been made.

Robert E. Bischoff and another, partners, doing business as Bischoff and Calvin, filed their notice of motion for judgment against John Francesa and another to recover alleged balance due on a written contract.

A judgment was entered in the Circuit Court of Kanawha County in favor of plaintiffs in the sum of $4,117.37, with interest from June 16, 1948, until paid, and the plaintiffs brought error, claiming that judgment was insufficient, and that interest should have been calculated from March 15, 1944.

Reversed in part; affirmed in part; Remanded with directions.

LovIns, Judge, not participating.

Fox, Judge, concurring in part, dissenting in part.

Woodroe, Butts & Kizer, John O. Kizer, for plaintiffs in error.

John N. Charnock, Robert K. Smith, for defendants in error.

Riley, Judge:

Robert Bischoff and Harley E. Calvin, partners doing business as Bischoff and Calvin, filed their notice of motion for judgment in the Circuit Court of Kanawha County against John Francesa and Kanawha Corporation, a corporation, to recover $6,346.24, the alleged balance due on a written contract, dated August 30, 1942, whereby plaintiffs agreed to do certain sub-grading and paving of streets and parking areas in Point Pleasant.

The United States Housing Authority had awarded to the defendants, John Francesa and Kanawha Corporation, joint adventurers, as the lowest bidders, a contract for the improvement of housing projects, W. Va. 46031 and 46034, at the United States Ordnance Works in Point Pleasant. In order to cut expenses this contract provided that there should be a sole contractor. Defendants having elected to be the sole contractor, filed bid, performance and payment bonds with the housing authority, and arranged with several different contractors, including the plaintiffs, to furnish the equipment and to act as supervisors on various parts of the entire work covered by the contract with the housing authority.

Pursuant to the above arrangement, plaintiffs and defendants entered into the written contract of August 30, 1942, upon which the instant proceeding is based, whereby plaintiffs agreed to subgrade and pave the streets and parking areas on the two projects covered by the general contract between defendants and the housing authority. As compensation for their services plaintiffs were to receive the price at which the work to be performed by them was bid by the defendants, less ten per cent, which ten per cent was to be retained by defendants as the latter's profit from the moneys received by them from the housing authority under the general contract.

After plaintiffs had completed their portion of the two projects, the defendants in making their final settlement, in addition to retaining ten per cent of $43,494.08, the bid price, or $4,349.40, defendants withheld the sum of $2,-591.54 (later corrected to $2,519.45), being 11.656% of $21,-615.01, the total amount of defendants' overhead cost, and an item of $86.35, as plaintiffs' portion of taxes on overhead wages and salaries; and a further sum of $3,668.36, which defendants claimed plaintiffs had agreed to under a certain alternative signed bid.

The commissioner sustained the defendants' claim to the $2,519.45 item retained by them as plaintiffs' percentage of the former's overhead, except for an item of $242.45, and to an item of $86.27 (being $86.35 less.08), as plaintiffs' portion of taxes on overhead wages and salaries; and on the $3,668.36 item found that plaintiffs were entitled to ninety per cent of the $43,494.08, the bid price, and defendants to ten per cent as per contract, and. provided for interest in favor of plaintiffs from March 15, 1944. Except for a further deduction of $134.39, a percentage of an attorney fee, from the overhead item of $2,519.45, and the allowance of interest from June 16, 1948, instead of March 15, 1944, the circuit court affirmed the commissioner in his findings. Both plaintiffs and defendants excepted to the findings of the court and moved for new trials. These motions were overruled and judgment entered in favor of plaintiffs in the sum of $4,117.37, with interest from June 16, 1948, until paid. It is to this judgment that plaintiffs prosecute the present writ of error, claiming that the same is insufficient to satisfy their claim and asserting further that the interest should have been calculated from March 15, 1944.

Inasmuch as the consideration of the "overhead" items, namely the $2,519.45 and $86.27, both involve an interpretation of certain provisions of the contract of August 30, 1942, relating to the general scope of plaintiffs' under- taking and compensation and the relative compensation of both parties, we now turn our attention to the contract.

The contract, in part, provides:

"* * * in consideration of the sum of $1.00, cash in hand paid, and other considerations hereinafter fully set forth, the First Parties do hereby contract and agree with the Second Parties that the Second Parties shall furnish the supervision and equipment and direct the doing of the following items of work on said project; and for the purpose of this agreement, the prices set forth are to govern:

"Stabilized gravel for streets, parking areas, including subgrading, etc., complete as set forth in the bid of the First Parties. Second Parties also agree to complete all berms, as directed by the Engineers.

"All of the above, less 10%; that is, the prices to govern shall be the bid prices on the above work, less 10%. (Stabilized gravel pavement including subgrading and finishing berms at 76 cents per Sq. Yd. less 10% Calcium chloride furnished and applied at $50.00 per ton, less 10%).

"The items enumerated in the above work in the bid taken thereon are agreed to be estimated only and may increase or decrease according to the instructions of the original contracting authority."

Because the contract between the housing authority and the defendants provided for no subcontractors, the parties to the agreement of August 30, 1942, incorporated into their agreement the following paragraph, the interpretation of which raises one of the decisive questions in this case:

"The said First Parties, shall, subject to the approval of the Second Parties, furnish and pay for all materials used on said project, the bond premium on the surety bond written by the First Parties to the original contracting authority in the proportion that the above items of work bear to the entire work on said project, shall pay the gross sales tax on the remuneration for the above items, the public liability and property damage insurance carried on the above items, the workmen's compensation insurance carried on the labor on the above items which shall be carried in the name of the First Parties, the social security tax and the old age pension costs on the labor on the above items of work, payroll of the labor placed upon the project under the direction of the Second Parties and any other costs or expenses on said work for which the First Parties might under their bond be liable. The cost of said labor, materials and insurance, and all other expenses above enumerated shall be deducted from the total aggregate amount earned on the project on the items of work set forth above, at the prices set forth above and the remaining amount, if any, shall be the remuneration of the Second Parties for the supervision, the furnishing of the equipment and the direction of the doing of the above named items. (The prices referred to in the foregoing paragraph shall mean the bid prices of the First Parties, less 10%). Payments shall be made to the Second Parties of any amounts due the Second Parties under the above agreement within three (3) days after the receipt of payment by the First Parties from the original contracting authority."

Defendants contend that by the above contract, they agreed to pay for the materials used by plaintiffs, bond premiums, gross sales taxes,...