Boykins Narrow Fabrics Corp. v. Weldon Roofing and Sheet Metal, Inc., 781001

• Decision Date: 06 June 1980
• Docket Number: No. 781001,781001
• Parties: BOYKINS NARROW FABRICS CORPORATION v. WELDON ROOFING AND SHEET METAL, INC. Record
• Court: Virginia Supreme Court

Page 887

266 S.E.2d 887

221 Va. 81

BOYKINS NARROW FABRICS CORPORATION v. WELDON ROOFING AND SHEET METAL, INC.

Record No. 781001.

Supreme Court of Virginia.

June 6, 1980.

Michael W. Smith, Richmond (Robert Alfred Gouldin, Gilbert W. Francis, Boykins, Christian, Barton, Epps, Brent & Chappell, Richmond, on briefs), for appellant.

H. Benjamin Vincent, Emporia (Vincent & Bloom, Emporia, on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

HARRISON, Justice.

On August 20, 1976, Boykins Narrow Fabrics Corporation filed its motion for judgment, seeking to recover $291,979 from Weldon Roofing and Sheet Metal, Inc., for its alleged breach of contract to install on Boykins' plant in Southhampton County for $18,729, a twenty-year bonded built-up roof with gravel surface. Specifically, plaintiff claimed that the roof that Weldon installed was defective and leaked, and that defendant's attempts to patch and modify it, made over a period of nine years beginning in October 1966, were unsuccessful to stop the leakage and that by reason thereof its machinery and materials were damaged and its production impeded. Boykins alleged that it replaced the roof at a cost of $58,479, and that at the time of replacement it discovered that a portion of the roof installed by Weldon had no vapor barrier of any kind and that another portion had a type of vapor barrier which was not the type specified by the contract. Weldon filed a plea of the statute of limitations and, following argument by counsel, the court below rendered its opinion, dated September 16, 1977, in which it concluded that defendant's plea would be sustained.

Thereafter, on November 23, 1977, Boykins moved the court for leave to file an amended motion for judgment in which it alleged that Weldon "guaranteed and warranted the roof when installed against defects and particularly against leaks and leakage for a period of 20 years"; that it paid Weldon for its installation of the roof on or about March 24, 1966; that the leaks and defects in the roof developed on or about October 1, 1966; and that defendant's efforts to repair the roof had the result of postponing any breach of the alleged guaranty or warranty until defendant finally refused to render further performance in November 1975. On March 9, 1978, the trial court considered plaintiff's motion to amend and observed that there was no mention of any guarantee or warranty in the contract between Boykins and Weldon. The court found no ambiguity in the words "20 yr. bonded roof with gravel surface," holding that the words were simply descriptive of the materials to be used, and that the defendant did not thereby guarantee the roof for twenty years against leaks and leakage. Accordingly, the court adhered to its September 16, 1977 ruling and entered an order on April 20, 1978, overruling plaintiff's motion to amend, sustaining the defendant's plea of the statute of limitations and dismissing the cause.

On May 10, 1978, Boykins filed a motion to vacate the April 20, 1978 order, for leave to amend its motion for judgment, assert a special plea of equitable estoppel as a bar to the statute of limitations, and to add a count in fraud. It tendered an amended motion in which it alleged, inter alia, that Weldon had knowledge that the roof as installed did not comply with the contract it had with the plaintiff and that it fraudulently represented that it did so comply; that defendant recommended certain remedial measures, notwithstanding it had knowledge that these measures would not be adequate to stop the leakage problem; and that plaintiff had no means of discovering the falsity of any of these representations. Plaintiff alleged that defendant, because of its continued representations, statements, acts, and efforts to repair the defective roof was equitably estopped to raise the statute of limitations as a bar to the plaintiff's action. On May 10, 1978, the court reviewed the proposed amended motion for judgment, found it insufficient as a matter of law for the reasons set forth in its opinions dated September 16, 1977, and March 9, 1978, and ordered that the plaintiff's motion to vacate and file an amended motion for judgment be denied. This appeal followed.

In a written memorandum of argument filed in the court below, counsel for Boykins capsuled his alleged case against Weldon as follows:

In 1965 Plaintiff employed, by written contract, Defendant to put a 20 year bonded built up roof on an addition to an industrial plant. The roof was "installed" in 1966. It was never right. It leaked. Defendant comes back, patches the leaks, tries different things, follows different theories, modifies the roof, but the roof still leaked. The last work done by the Defendant on the roof was mid 1975 (Weldon enjoys a good reputation and it wanted to have a pleased customer). (Previously (1962) Weldon installed (the) same type of roof on the original plant and that roof has never given any trouble.) The parties continued to discuss the mutual problem until November 1975, and when there was nothing else (that) could or would be done to stop the leaks the parties became exhausted in their relationship. Plaintiff contracted with a third party (March 1976) to replace the roof. In removing the old roof a sample was tested and the reason for the original roof leaking was then discovered. The Plaintiff forthwith (August 1976) filed suit. Defendant pled the Statute of Limitations.

This statement negates any allegation of fraud or any basis for application of the doctrine of equitable estoppel. Plaintiff says the roof was "never right." If so, it had a cause of action which could have been asserted immediately after the roof was installed. Plaintiff admits that Weldon had previously installed the "same type of roof" on its original plant and that it had never given any trouble. Plaintiff says that defendant tried different things, followed different theories, and modified the roof, all in an effort to correct a condition which both parties recognized. Clearly this is not a charge of bad faith, or that defendant was trying to lull the plaintiff into inaction. Rather, it is a description of a roofing contractor trying to satisfy a customer and fulfill its contract. Plaintiff admits that Weldon enjoyed a good reputation and that it wanted to satisfy and please Boykins. These representations to the court were wholly inconsistent with plaintiff's subsequent allegations of fraud leveled against Weldon. Plaintiff admits that the problem was "mutual," one to which both parties addressed their attention until November 1975, when they...