Charleston Lumber Co. v. Friedman.
| Decision Date | 24 March 1908 |
| Citation | 64 W.Va. 151 |
| Court | West Virginia Supreme Court |
| Parties | Charleston Lumber Co. v. Friedman. |
1. Damages Liquidated Damages.
Liquidated damges. There are two rules for inferring that the parties, by naming in a contract a sum to be paid for its breach, intended it to be as liquidated damages, not a penalty. (1) Where the damages are uncertain and not readily capable of ascertainment in amount by any known or safe rule, whether such uncertainty lies in the nature of the subject, or in the particular circumstances of the case; or, (2) where from the nature of the case and the tenor of the agreement, it is apparent that the damages have already been the subject of actual fair estimate and adjustment between the parties. (p. 150.)
2. Contracts Building Contract Construction.
A building contract provides that the contractor shah erect, under the specifications, control and to the satisfaction of named architects," appointed by and acting for the purpose of this contract as the agent of the said owner." The contract provides that the building shall be completed by a given date, and on failure the contractors " shall pay the owner, by way of liquidated damages the sum of 10 Dollars per diem for each and every day thereafter that the said work remains incomplete and unfinished.'' The architect has no power to waive such provision. (p. 150.)
3. SAME Waiver of Conditions.
A waiver or release of a vested right of value under a contract must rest on valuable consideration, and must be clearly and fully proven. The burden of proof is on him who asserts such waiver. (p. 160.)
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4. EVIDENCE Declarations.
A statement or representation, in ordinary cases, must refer to a present or past fact, not to a future matter, or the expression of a mere intention or opinion. (p. 161.)
5. Contracts Building Contracts Extension of Time.
A building contract provides that change or extra work may be asked by the owner, and that for it, if extension of time for completion is wanted, the contractor must file a written claim with the architects, giving grounds of extension, and that any extension must be given in a written certificate of the architect. No allowance for delay in such completion can be demanded without such application for and certificate of extension. (p. 164.)
6. Damages Breach of Contract Liquidated Damages.
When a building contract provides that the contractor shall pay the owner a sum per day for delay in completion of the building, and the case is such that such provision is one of liquidated damage, there need be no proof of actual damage from delay. (p. 165.)
7. Contracts Building Contracts Architect's Certificate.
Where a building contract provides that the work shall be done to the full satisfaction and under the direction and supervision of the architect, and payment shall be made on his certificate that the work has been done according to the contract, such certificate is a condition precedent to recovery by the contractors (p. 167.)
Appeal from Circuit Court, Kanawha County.
Bill by the Charleston Lumber Company against Jacob Friedman and others. Judgment for plaintiff, and defendant Friedman appeals.
Reversed.
Littlepage, Cato & Bledsoe, for appellant.
Price, Smith, Spillman & Clay, for appellee A. F. Withrow &Co.
Jacob Friedman owned a lot on the west side of Capitol street, in the city of Charleston, and upon it, under sealed contract with A. F. Withrow & Co. as building contractors, he erected a store building. G. W. Jobe mad e a contract with Friedman for putting shelves, counters and casings in the building, and other interior work, and the Charleston Lumber Company furnished Jobe materials therefor, and it filed a lien for such furnished materials against said lot. A. F. Withrow & Co., the contractors furnishing materials for and erecting said building, also filed a mechanic's lien against said lot. The Charleston Lumber Company brought a suit in equity to enforce its lien against said lot, making A. F. Withrow & Co., as owners of their mechanic's liens, parties, setting up that A. F. Withrow & Co. held such lien. A. F. Withrow & Co. filed their answer as a cross-bill setting up their demand and lien, and as making its enforcement against Friedman's lot. Friedman tiled an answer, in which he claimed a deduction from the demand of A. F. Withrow & Co. for liquidated damages at ten dollars per day for delay, beyond the time limited for the completion of the building and other deductions. The case was referred to a commissioner to report upon the controversy, and he reported in favor of A. F. Withrow & Co. for their full demand, without any deduction for such liquidated damages or other deduction, and the court confirmed the report, decreed the full demands of the Charleston Lumber Company and A. F. Withrow & Co., and directed the lot to be sold for payment of their liens, and Friedman appeals as to the allowance of the demand of A. F. Withrow & Co. Thus the demand of the Charleston Lumber Compay is out of the case.
Friedman claims that he is entitled to deduct from the contract sum for the erection of the building at ten dollars per day for 121 days delay, beyond the time stipulated for the completion of the building, by reason of the following clause in the written contract: "Second, Should the said Contractor fail to finish and complete the said works, at or before the
time set forth.............................. shall pay to
the said Owner by way of liquidated damages, the sum of 10 Dollars per diem for each and every day thereafter that the said works remain incomplete and unfinished, unless the time be extended as hereinafter provided." The contract dates 27 July, 1904, and provides that the contractors, A. F. Withrow & Co., "shall and will complete and finish on or before the 1st day of December, 1904, or in four months, all the works, buildings and structures herein provided for." The building was not completed until April 1, 1905.
A question, as a first matter, is raised as to the right to insert by oral evidence the word " they" in the blank found in the contract. No evidence is needed to correct this clerical error, as it is self-correctible. Anybody would say that it was the contractors who were to pay the ten dollars per day for delay in completion, because it speaks that it is for the failure of duty by the contractors that the "owner" was to receive the ten dollars per day damages. It is not an ambiguity, patent or latent, arising from the words; but is an omission of a word, by clerical mistake. The oral evidence to insert "they" does not add to or contradict. It simply supplies an omission. "A written contract should be construed according to the obvious intention of the parties, notwithstanding clerical errors or omissions therein which can be corrected by perusing the whole instrument." Monmouth &c. v. Wallace &c., 39 Am. St. R. 626.
A vital question in the case is this: Is the provision for payment of ten dollars per day by the contractors to Friedman for delay over time in the completion of the work to be regarded as liquidated damages or a penalty? If a penalty, equity will not enforce it; if damages liquidated by the contract, equity will enforce it. 2 Page on Contracts, sec. 1167 says: The intention governs. We find in 13 Cyc. 90 this statement: In Stony Creek L. Co. v. Fields & Co., 102 Va. 1, the law is stated as follows:" Whether a given sum agreed to be paid in case of the breach of a contract is to be regarded as liquidated damages or as a penalty must depend on the facts of the particular case, regardless of the name by which the parties have called it. If the contract is for the doing of a single specific act, and there is no adequate means of determining' from the contract or otherwise the precise damage which may result from its breach, the sum agreed will generally be regarded as liquidated damages and not a penalty; but, when from the nature of the contract or the work to be performed it is not difficult or impossible to ascertain the damages resulting from a breach, the sum stipulated will generally be regarded as a penalty." In Mathews v. Sharp, 99 Pa. St. 560, the law is stated as follows: When damages from breach of contract are Monmouth Park v. Wallace Iron Works, 53 N. J. L., 125, 39 Am. St. R. 626." Because of the difficulty of ascertaining with certainty the damages arising from the failure to complete working contracts within the stipulated time, ...
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