City of Charlotte v. Atlantic Bitulithic Co.

• Decision Date: 04 November 1915
• Docket Number: 1372.
• Citation: 228 F. 456
• Parties: CITY OF CHARLOTTE v. ATLANTIC BITULITHIC CO.
• Court: U.S. Court of Appeals — Fourth Circuit

228 F. 456

CITY OF CHARLOTTE v. ATLANTIC BITULITHIC CO.

No. 1372.

United States Court of Appeals, Fourth Circuit.

November 4, 1915

[Copyrighted Material Omitted]

Chase Brenizer and H. L. Taylor, both of Charlotte, N.C. (F. I Osborne, of Charlotte, N.C., on the brief), for plaintiff in error.

Charles W. Tillett, of Charlotte, N.C. (Thomas C. Guthrie, of Charlotte, N.C., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

KNAPP Circuit Judge.

The plaintiff in error, defendant below, seeks reversal of a judgment, entered upon the verdict of a jury, in this suit of the Atlantic Bitulithic Company to recover the balance alleged to be due upon a contract for street paving; and such of the errors assigned as appear to merit discussion will be briefly considered. The first of these is a question of evidence which arises in connection with the following provision of the contract:

'Within thirty days after the final completion and acceptance of the work by the engineer and executive board, as evidenced by the final estimate and certificate of completion and acceptance, any balance remaining due to the contractor will be paid to him in cash.'

Firth, the city engineer, a witness for the plaintiff, after stating that he had supervision of the work and saw it almost daily during its progress, further testified:

'I examined and inspected the work after it was completed and accepted it as a compliance with the contract.'

He was thereupon allowed, over defendant's objection, to answer this question:

'In that connection, in your opinion as an engineer, from your knowledge of the specifications and contract and your personal observations of this work, was it in compliance with the contract?'

It is insisted that this was an erroneous ruling because it permitted the witness to express an opinion upon the chief matter in dispute without stating the facts upon which that opinion was based, and numerous cases are cited which are claimed to support the contention. The rule invoked is well settled, but we are of opinion that it is not applicable. The witness had stated without objection that he examined the work and accepted it as complying with the contract, and we perceive no reason why it was not competent for him to testify that the work had in fact been done in accordance with the contract. The question he was asked, as the jury must have understood it, did not call for expert opinion, except in a qualified sense, but rather for his knowledge and professional judgment respecting the subject of inquiry. It needs only a glance at the contract to see that the specifications were numerous and complicated, some of them distinctly technical. They related to the kind and quality of materials, their preparation for use, and detailed methods of construction. The witness was the defendant's representative and agent. He was charged with the duty, as repeatedly appears in the specifications, of seeing that the contractor lived up to his agreement in each particular. He could reject materials which did not meet the contract requirements, compel the contractor to take out and replace work which did not conform to the standard of construction, and even order the discharge of employes who disregarded his directions or were found to be incompetent. Under such circumstances, it seems plain to us that he was properly allowed to state as a fact that the work actually done was of the character and quality called for by the contract; and that his testimony was not incompetent, or otherwise in violation of the rule respecting expert opinion, because his answer involved professional judgment as well as personal knowledge. As it was his duty to supervise the work during its progress and exercise his authority to require compliance with the contract, so was it clearly permissible for him to testify to the fact that the contractor had fulfilled his obligations. In a case like this it would be quite unreasonable to hold that the engineer should be confined to a detailed recital of what the contractor had done and a minute comparison of each item with the specifications of the contract. Such a course would not only be impracticable but tend to confuse rather than enlighten the jury. The comparison had been made by him as the work progressed, and it was competent for him to state the results of that comparison.

And this view accords with the decisions of the courts generally in analogous cases. For example, Schaefer v. Ely, 84 Conn. 501, 80 A. 775, Ann. Cas. 1912D, 899, is directly in point. That was an action on a building contract, and the architect who drew the plans and was familiar with the progress of the work was permitted to give his opinion that the work had been done properly and in accordance with the contract, without detailing the manner in which each item of work had been performed. In sustaining this ruling the Supreme Court of the state said:

'The main objection to this evidence was that the opinion of the witness could not be given, that he must state in detail what he saw, and the various defects, and leave the conclusion of compliance with the contract to be drawn by the court between the contract and the work done. This is an erroneous view. The witness who qualifies as an expert and testifies to his familiarity with contract, plans, specifications, and changes therein, and with the work done, may give his conclusions as to the comparison between these, without detailing at length the manner in which each item of the work done has been performed. When the opinion of the witness in a case is evidence otherwise competent, and the subject of the investigation will be made clearer by its introduction, the opinion should be received. When facts sought to be proved are of so voluminous or complicated a character that their introduction would occupy much time, and might be difficult to understand by themselves, and these many facts are to be proved for the purpose of drawing a conclusion from them, the court may permit a witness who is qualified upon the subject of investigation, and has made the investigation, to express an opinion without giving the details on which the opinion rests.'

Other cases in which it has been held that a qualified witness may state that the work of construction has been done in accordance with the contract are Kreuzberger v. Wingfield, 96 Cal. 251, 31 P. 109; Stark Grain Co. v. Harry Bros. Co., 57 Tex.Civ.App. 529, 122 S.W. 947; Tucker v. Williams, 2 Hilt. (N.Y.) 562; Taulbee b. Moore, 106 Ky. 749, 51 S.W. 564; and Johnson v. Griffiths & Co. (Tex. Civ. App.) 135 S.W. 683.

In this connection it may be observed, as the court observed in the Connecticut case, that the defendant had full opportunity by cross-examination of the witness to test the extent of his knowledge and the accuracy of his judgment. Instead of attempting in this way to discredit or weaken the testimony, the defendant apparently preferred to rely upon an exception to its admissibility. We deem it not doubtful that the question was properly allowed.

The admission of testimony to the effect that the work done was worth the contract price, and as to the cost of similar pavements of superior quality, is the basis of a group of exceptions which may be considered together. We are of opinion that reversible error cannot be predicated upon these rulings of the trial court for two reasons. In the first place, it appears to be settled that where a contract has been completed suit may be brought upon the contract itself and also in assumpsit, although in the latter case recovery would be limited to the contract price. In this suit the complaint sets up two causes of action, one upon the written contract and the other for work done and accepted of the value alleged; and the right to recover upon the second count seems to be fully sustained by Dermott v. Jones, 69 U.S. (2 Wall.) 1, 17 L.Ed. 762, in which the Supreme Court said:

'While a special contract remains executory the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to be done but the payment of the price, he may sue on the contract, or in indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties.'

Apart from this, however, we are of opinion that the testimony became immaterial and its admission harmless because the trial court excluded it from consideration by submitting the issue to the jury in the form of this question:

'What amount, if anything, is the plaintiff entitled to recover of the defendant under the terms of the contract?'

The effect of this charge was to eliminate the second cause of action and confine the jury to finding whether the contract had been performed in accordance with its...