Bluefield Armature Co. v. R. G. Pope Const. Co., 75-1908

• Citation: 548 F.2d 484
• Decision Date: 02 November 1976
• Docket Number: No. 75-1908,75-1908
• Parties: BLUEFIELD ARMATURE COMPANY, a corporation, Appellee, v. R. G. POPE CONSTRUCTION COMPANY, a corporation, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 484

548 F.2d 484

BLUEFIELD ARMATURE COMPANY, a corporation, Appellee, v. R. G. POPE CONSTRUCTION COMPANY, a corporation, Appellant.

No. 75-1908.

United States Court of Appeals Fourth Circuit.

Argued April 8, 1976.

Decided Nov. 2, 1976.

Bradley Roberts, Bristol, Va., was on the brief and argued the case but died prior to the filing of the opinion.

James W. Elliott Jr., Abingdon, Va., for appellant.

Edmund C. Stone, Jr., Bluefield, W. Va. (Kwass, Stone & McGhee, Bluefield, W. Va., J. D. Morefield, Browning, Morefield & Schelin, Abingdon, Va., on brief), for the appellee.

Before BRYAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.

PER CURIAM:

This diversity case arose out of repairs on a 500 horsepower electric motor performed by Bluefield Armature Company (Bluefield) for R. G. Pope Construction Company (Pope), the owner of the motor.

The trial was to the court without a jury. The only questions are whether the judge's findings of fact were clearly erroneous as they found the motor was properly repaired, and whether the trial court erred in holding that, after it had found that the repairs done to the motor were performed in a skillful and workmanlike manner, the burden was then on Pope, if it were to escape liability on the account and prevail in a counterclaim for consequential damages, to prove that the repairs had been performed with defective workmanship. We affirm.

The motor in question had been installed some time previous to the times relevant here. It burned out July 12, 1973, and, upon being repaired and having run a few days, more trouble was encountered on July 25, 1973. This sequence was repeated twice in August, until, after more trouble near the end of September, the motor was not repaired again. Some months later, Bluefield brought suit on the account to collect the repair charges. Pope denied liability for the charges and filed its counterclaim.

The trial court stated into the record its findings of fact and conclusions of law, which are copied here:

"THE COURT:

Therefore, at this time I am going ahead and state to you orally what I find the facts to be and conclusions of law. Now since I have not written these down I want you gentlemen to pay particular attention to what the Court has to say because after I finish I'll then attempt to answer any additional facts which you gentlemen might feel that I have not covered.

"This is basically an action on contract for the repairing and rebuilding of an electric motor. The Answer filed by the Defendant and the Counterclaim filed by the Defendant raises the question as to why the motor was burned up on several occasions and the Answer also questions the propriety of the invoices that were presented by the Plaintiff for the work performed.

"Now there's no question but what the Plaintiff implied a warranty and perhaps by an expressed warranty, I believe the invoice says, 'Prompt Service', 'All Work Guaranteed'. But anyway, there's no question but what they've implied warranty that the work which the Plaintiff undertook to perform would be performed in a skillful and workmanlike manner. The Defendant says that the Plaintiff failed to properly repair and rewind the motor. The Plaintiff says that the work was performed in a skillful and workmanlike manner.

"I don't think there is a great amount of conflict in the evidence. There is some variation as to the opinions expressed by the experts, but the evidence as to what actually happened is not too much in conflict. Now I find that the Plaintiff had no control over the source of power, had nothing to do with the startup mechanism or the equipment for starting up the motor, had no control over the protective or safety devices insofar as this machine was concerned and was not responsible for the hookup of the motor to the source of power.

"I find persuasive the testimony of both Mr. Mattox and Mr. Shrewsbury that the motor was properly rewound and that all tests required to be run were run at the plant on the repaired motor and each time the tests showed that the motor to be in proper working order, or when it left the plant. I find as particularly persuasive Plaintiff's Exhibits numbered 9 and 10. Number 9 is a letter from Mr. Shrewsbury to Mr. Pope dated December the 7th, 1973, at which time he indicated what the amount of the bill was, he indicated a willingness to accept payment of $11,740.64 at that time; he said it left a balance of $23,436.91; that he would be willing to carry this amount for a period of 90 days, but that he would have to have interest at the rate of 11/2% per month for the 90-day period.

"I find as particularly significant the fact that Mr. Pope for a long period of time did not answer this letter, did not deny anything set forth in the letter, and, the letter itself was confirming a telephone conversation that had taken place between Mr. Shrewsbury and Mr. Pope.

"And then Plaintiff's Exhibit Number 10, the letter dated November the 27th, 1973, from Mr. Pope to Appalachian Power Company indicating at that time he did not question but what the work on each occasion had been performed in a satisfactory workmanlike manner. At that time he blamed Appalachian Power Company for the trouble. Now I think that he thought at that time Appalachian was at fault.

"I think that from the discovery depositions that have been taken and the evidence that he has heard and investigation, that he is truthful in now saying he thinks that Appalachian was not at fault.

"I think that the Plaintiff carried the burden of proof by its testimony that the work each time was performed at the request of the Defendant, that the work was performed in a skillful and workmanlike manner, that each time the work was tested before the machine was sent back. I'm frank to say I do not know what...