Cass-Warner Corp. v. Brickman

• Decision Date: 07 February 1967
• Docket Number: CASS-WARNER,371,Nos. 370,s. 370
• Citation: 126 Vt. 329,229 A.2d 309
• Parties: CORPORATION v. Herbert L. BRICKMAN and Joyce Brickman. Herbert L. BRICKMAN and Joyce Brickman v.CORPORATION.
• Court: Vermont Supreme Court

Page 309

229 A.2d 309

126 Vt. 329

CASS-WARNER CORPORATION v. Herbert L. BRICKMAN and Joyce Brickman.

Herbert L. BRICKMAN and Joyce Brickman v. CASS-WARNER CORPORATION.

Nos. 370, 371.

Supreme Court of Vermont.

Feb. 7, 1967.

Reargument Denied April 11, 1967.

Philip Kolvoord. Essex Junction, for plaintiff.

McNamara, Fitzpatrick & Svlvester, Burlington, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

Cass-Warner Corporation brought suit (No. 370) to recover a balance claimed to be due for labor and materials furnished to defendants, Brickmans, for the construction of a marina. Thereafter, the Brickmans brought a counter-suit (No. 371) seeking damages for alleged inproper and defective work done by Cass-Warner 'under an agreement'. The cases were consolidated for trial by agreement of counsel. Hearing was by court. Findings of fact were made by the trial court applicable to both cases. Each party has appealed, claiming the evidence does not support certain specified findings of fact on which the single judgment order pertaining to both cases is founded.

The work to be done consisted principally of dredging the harbor to deepen the channel, the construction of bulkhead to retain the dredged material and the construction, upon piling, of a dock leading from the bulkhead into the lake. There is no dispute concerning the work being done or the equipment and materials being furnished by Cass-Warner at the request of the Brickmans under an oral agreement. Cass-Warner claims the contract provided that it was to do the work upon a time and materials basis, billing weekly at an agreed fixed rate for labor and machines and at a cost plus ten per cent for materials.

Cass-Warner declared on the common counts and filed specifications of its claim which included a copy of each weekly invoice rendered to the Brickmans. The evidence shows work began on May 2, 1964 but ceased on June 23, 1964 at the direction of the Brickmans because they did not have the money to continue the work. At that time the bulkhead was constructed but not completely filled nor aligned, the dock had not been completed and the harbor only partially dredged. There is no dispute but that the Brickmans had paid the invoices for the first three weeks ending May 23, aggregating 7,918.32 and had not paid the invoices of June 3, 8, 15 and 23 amounting to $15,320.80.

In their counter-suit the Brickmans allege Cass-Warner Corporation 'entered into to an agreement whereby, in return for payment therefor, by the plaintiffs', it agreed to design and construct a 300-foot bulkhead, dredge certain areas placing the material behind the bulkhead and drive pilings along the face of a pier for a landing platform. They also allege the bulkhead was inadequate and must be reconstructed or reinforced, the dredging was not done to the depths agreed upon, and the pilings were driven in an irrgular and uneven manner and claimed the reasonable value of the work, if properly performed and completed, would have been $10,400.00. They make no claim in their writ that the agreement provided the work was to be done as a completed job for a total fixed price, payable in installments.

Cass-Warner's declaration is in general assumpsit on the common counts with specifications based on the contract it claims was made with the Brickmans. Such procedure in this case is proper under the circumstances disclosed by the record.

In the case of Boville v. Dalton Paper Mills, 86 Vt. 305, 85 A. 623 the declaration was in assumpsit and consisted of the common counts and one special count alleging an express contract, partial performance by plaintiff, and a breach by defendant preventing further performance. Upon motion by defendant that plaintiff elect which count he would stand on, the plaintiff elected to proceed under the common counts. The evidence tended to show a contract for doing the work covered by plaintiff's specifications at agreed prices; payment to be made on the 15th of each month for work done the previous month and failure of defendant to pay as agreed. The court there said:

'It is the uniform holding of our cases that one may recover under the common counts for work done under a special contract which he has been compelled to abandon by the nonperformance of the other party. Of these cases reference may be had to Chamberlain v. Scott, 33 Vt. 80; Davis v. Streeter, 75 Vt. 214, 54 Atl. 185.'

Here, the action of Cass-Warner is not to recover damages for an unwarranted breach of contract for a completed project. Rather, it is a suit to recover for the work actually performed and materials actually furnished at the express request of the Brickmans, the same to be paid for each week under rates agreed to by the parties. See Curtis v. Smith, 48 Vt. 116, 119, 120.

In Peist v. Richmond, 97 Vt. 97, 122 A. 420, Judge Powers said: 'This right of abandonment is, not infrequently, spoken of as the right of rescission. * * * (I)t differs from the right of rescission, in that the contract may still be resorted to by the party not in default for the recovery of his damages. (Citing cases).'

Moreover, any objection to the action being in general, rather than special, assumpsit is one that can be waived, and was waived by not being made on trial, for it does not go to the jurisdiction, but only to a matter of pleading and practice. This also applies to the form of action. Valiquette v. Clark Bros. Coal Min. Co., 83 Vt. 538, 543, 77 A. 869, 34 L.R.A.,N.S., 440.

The pivotal issue raised by the appeal of Cass-Warner Corporation is whether the work was agreed to be done on a time and materials basis and, if so, whether the court properly used the 'reasonable value' for the work done in determining plaintiff's damages.

These issues bear heavily on the first finding of the court which reads:

'1. There being no controversy relative to the specification submitted in the case of Cass-Warner v. Brickman, Docket No. 10,024, the court finds that the specifications submitted by the plaintiff in that case are proper and that, in fact, have not been fully paid, and that there is a balance due therein of $15,320.80 as of June 3, 1964.'

(From the record it is very obvious that the date should be June 23, not June 3 as shown in the foregoing finding, and we so treat it.)

Findings of fact must stand if there is any evidence fairly and reasonably tending to support them. 12 V.S.A. § 2385. This court must affirm the findings if there is any credible evidence to support them. The weight of the evidence, the credibility of the witnesses and the persuasive effect of the testimony lies solely with the trier of facts. Smith v. Lentini, Extr., 125 Vt. 526, 528, 220 A.2d 291.

Finding No. 1 is a general finding by the court made at the very outset of its Findings of Fact. A general finding in favor of one party or another is a finding of every special fact necessary to sustain it and conclusive as to such facts, if there is evidence to support a finding of their existence. 5A C.J.S. Appeal & Error, § 1656(5), note 10, p. 476; Platt v. Woodland, 121 Kan. 291, 246 P. 1017. Rain v. Balph, Okl., 293 P.2d 359, 360-361; Smart v. Billings, 169 Okl. 26, 35 P.2d 923.

On April 28, 1964 Mr. Brickman wrote a letter to Mr. Warner confirming that Cass-Warner had agreed to perform work on the harbor and that the 'cost of such work woud be in accordance with the conversation had between Ben Warner and Blair Muller, R.A.' Mr. Muller acted for and counseled the Brickmans during the time before and after the work began. For sometime previous to the above date numerous conferences had taken place between the parties, including Mr. Muller, in regard to the work and its estimated cost.

A notation appears at the bottom of Plaintiff's Exhibit # 9 which shows the rates for equipment and material. Although the court admitted the letter without limitations, it is apparent from the record that the parties did not intend that the pencil notation was to be considered as a part of the exhibit. However, Cass-Warner's witness testified that rates were worked out with Mr. Muller, that such rates arrived at were those at the bottom of the letter and were the rates used to later bill the Brickmans. And Mr. Brickman admitted by his testimony that 'There was some agreement between Mr. Muller and Mr. Warner concerning prices, yes.' He did not testify what those prices were nor did he testify an agreement was reached to build the marina for a flat specified contract price. Neither does it appear in the evidence that Mr. Brickman denied that the rates charged in the invoices were not the 'prices' agreed upon between Mr. Muller and Mr. Warner.

Finding No. 1 is a general finding in favor of Cass-Warner. If found 'That the specifications submitted by the plaintiff in that case are proper and that, in fact, have not been fully paid.' It then found the balance due to Cass-Warner. Our conclusion from this finding is that the court decided that the charges made by the plaintiff as shown in the specifications of its claim filed in the case 'are proper.' Again, in Finding No. 2 the court found the amount of $8627.00 which was the charge for labor and material for dredging based on the invoices 'is a proper charge.' From these findings, it may readily be inferred, that the rates charged in the weekly invoices, Plaintiff's Exhibits # 1-# 7, were in accordance with the agreement Cass-Warner claims was made. The Brickmans paid the first three invoices without questioning or disputing the rates charged which strongly indicates the correctness and validity of such rates.

The court found in Finding No. 5 that 'this was initially a time and materials contract,' with 'no upset price.' We think the evidence fairly shows this was the agreement and that the rates, or prices, of payment agreed upon between Mr. Muller and Mr. Warner were those shown by Plaintiff's Exhibits # 1-# 7.

The findings referred to...