Coldiron v. Gaster

• Decision Date: 13 May 1971
• Parties: J. R. COLDIRON, t/a Coldiron Drywall Construction Co., Plaintiff, v. Donald S. GASTER et al., Defendants.
• Court: Delaware Superior Court

Page 328

278 A.2d 328

J. R. COLDIRON, t/a Coldiron Drywall Construction Co., Plaintiff, v. Donald S. GASTER et al., Defendants.

Superior Court of Delaware, New Castle County.

May 13, 1971.

Harold Leshem, Wilmington, for plaintiff.

William F. Lynch, II, Wilmington, for defendants.

OPINION

MESSICK, Judge.

Donald S. Gaster is the general contractor and a lessee of the Cliff House, which is a seven story apartment building located in Brandywine Hundred. On April 28, 1969, he negotiated a sub-contract with John R. Coldiron who does business through the Coldiron Drywall Construction Co. Mr. Coldiron was employed to dry-wall the structure. Although work began on a harmonious note in May of 1969, Coldiron left the Cliff House on January 12, 1970, because of a pay dispute. He subsequently filed a mechanics' lien against Gaster and his wife who manage Cliff House as tenants in partnership under 6 Del.C. § 1525, and against the John Hancock Mutual Life Insurance Company which owns the premises. ¹ The plaintiff also sought a personal judgment against Gaster on the sub-contract.

After a jury trial in June of 1970, the plaintiff recovered $51,788.00 in damages. The defendants move for a new trial, contending that the verdict is excessive, contrary to the evidence, and against the charge of the Court. In addition, 10 Del.C. § 3912, which allows counsel fees to the successful claimant in a mechanics' lien action, is attacked as unconstitutional. Even if the statute is valid, the defendants contend that only the jury should assess counsel fees and not the Court.

Courts are reluctant to disturb jury verdicts because of the essential position which they occupy in our judicial system. Burns v. Delaware Coca-Cola Bottling Company, 224 A.2d 255 (Del.Super.Ct., 1966). Every verdict is presumed to be correct. Lacey v. Beck, 2 Storey 526, 161 A.2d 579 (Del.Super.Ct., 1960). However, jury verdicts will be set aside as excessive when the findings contradict undisputed evidence or ignore rules of law. Bennett v. Barber, 7 Terry 132, 79 A.2d 363 (Del.Sup.Ct., 1951); Lacey v. Beck, Supra; 89 C.J.S. Trial §§ 501, 506. When this situation occurs the Court may grant a new trial or order a Remittitur of the amount which cannot be sustained by the record. Rudnick v. Jacobs, 9 W.W.Harr. 169, 197 A. 381 (Del.Sup.Ct., 1938). The party against whom a Remittitur is ordered must either remit the excess or accept a new trial. Rudnick v. Jacobs, Supra; 39 Am.Jur. New Trial §§ 140, 210.

Here, the sum of $10,200.00 must be remitted or a new trial granted. The contract between the parties provided that Coldiron would drywall the Cliff House and supply the materials necessary for the task at a price of $129,000.00. An initial payment of $32,000.00 was required upon delivery of the supplies.

Thereafter, payments were divided by floors and were further apportioned in accord with the work done on each level. Specifically, plaintiff would receive $13,700.00 per floor through the sixth story for a total figure of $82,200.00. Of the $13,700.00, $6,850.00 was due upon installation of the metal studding and the drywall, and $6,850.00 upon 'finishing' the work which consisted of spackling and painting the joints and nails. The seventh floor required more work than the first six, and the parties, consequently, set a higher price of $14,800.00 for it. This figure also was payable in two installments of $7,400.00--one due after the hanging of the drywall and the other upon completion of the 'finishing'.

In summary, the contract price of $129,000.00 represented $32,000.00 for supplies delivered in preparation for the job, $82,200.00 for work through the first six floors, and $14,800.00 for the seventh floor. Every payment, moreover, was subject to a withholding of 5% Pending satisfactory completion of the work.

$30,400.00 of the $32,000.00 materials bill was paid, with $1,600.00 withheld, on June 6, 1969. On July 24, 1969, a bill representing work for studding and hanging drywall on the first four floors was prepared in the amount of $27,400.00. Defendants paid $26,030.00 and retained $1,370.00. On October 8, 1969, a bill in the amount of $20,550.00 was presented for 'finishing' work on the first three floors. $19,522.00 was paid, with $1,028.00 held back. The next two bills dated November 29, 1969 and January 8, 1970, were not paid. The November billing charged defendants for 'finishing' the fourth and fifth floors and for 'rocking' (hanging the drywall) the fifth and sixth floors in the amount of $27,400.00. The January bill was submitted for 'finishing' the sixth floor and 'rocking' the seventh floor, and totaled $14,250.00.

Plaintiff also presented bills for materials left on the job valued at $4,000.00, and for extra work in the sum of $2,140.00. Defendants were billed $127,740.00 and paid $75,952.00. Plaintiff asked for and received the difference of $51,788.00 between these two figures at trial.

An analysis of the bills demonstrates that plaintiff recovered on the basis that all work at the Cliff House was completed except the 'finishing' on the seventh floor. However, plaintiff admits or does not deny that certain things were not done properly or were incomplete. For example, more drywall had to be hung on the seventh floor although defendants were charged $7,400.00 for completed drywall work in the January bill. Plaintiff's testimony estimated that about 3/4 of $5,000.00, or $3,750.00, would be the labor cost alone of hanging the rest of the drywall. Clearly, the defendants have been overcharged on this item. Furthermore, plaintiff's admissions and uncontradicted testimony establish that five bathrooms have to be corrected at a cost between $1,250.00 and $1,500.00. Although the sixth floor was '99%' complete, an additional expenditure of $150.00 is necessary. A further $1,000.00 had to be spent to complete work in the lobby. The overcharge for these items comes to $6,400.00.

Plaintiff also recovered $4,000.00 for materials left on the seventh floor. However, the sub-contract required plaintiff to provide these supplies as part of the contract price of $129,000.00. The agreement states that 'The Subcontractor agrees to furnish all material and to perform all work * * * Contractor agrees to pay the Subcontractor for the performance of said work and furnishing of said materials in accordance with the terms hereof for the sum of One Hundred Twenty Nine Thousand Dollars ($129,000.00) in accordance with the following schedule, subject to such additions and changes as may be agreed on * * *' The price schedule states that the $32,000.00 payment was due 'when drywall is loaded on all seven floors.' The contract can only be interpreted to mean that drywall materials which were not paid for by the $32,000.00 would have to be provided for by the stage payments, because the total contract price included the furnishing of all the drywall supplies contemplated by the agreement. No evidence is presented which shows that the $4,000.00 charge was an extra amount agreed upon by the parties during the performance of the contract. Since plaintiff's testimony estimates that $3,800.00 of the $4,000.00 figure represented drywall materials ($3,500.00 for 'sheetrock' or drywall, and $300.00 for metal framing), the defendants are entitled to a credit of that sum.

The total overcharge amounts to $10,200.00. Defendants asked for damages for alleged defects in the caulking and insulation of the Cliff House as well as for deviation from specifications concerning room and wall dimensions. Since these matters were disputed, the Court may not disturb the jury's resolution of the conflicting testimony. Haas v. Jones, 8 Terry 415, 93 A.2d 915 (Del.Super.Ct., 1953). However, a Remittitur of $10,200.00 will be ordered or a new trial granted in the alternative because undisputed and admitted evidence demonstrates that the defendants have been improperly overcharged in this amount.

Defendants also contend that 10 Del.C. § 3912, which awards attorney's fees to the successful claimant in mechanics' lien cases but not to the victorious defendant, violates due process and equal protection of the laws and, therefore, that the plaintiff cannot recover this litigation expense.

10 Del.C. § 3912 reads as follows:

'In all causes of action, suits, matters or proceedings brought for the enforcement of any note, bond, mechanics lien, mortgage or other instrument of writing, if the plaintiff or lien holder in the action, suit or proceeding recovers judgment in any sum, he may also recover reasonable counsel fees, which shall be entered as a part of the judgment in the action, suit or proceeding. Such counsel fees shall not in any such action, suit or proceeding, exceed five per cent of the amount adjudged for principal and interest. Such counsel fees shall not be entered as a part of such judgment unless the note, bond, mortgage, or other instrument of writing sued upon, by the terms thereof, expressly provides for the payment and allowance thereof, except in the cases of mechanics liens in which no express agreement shall be necessary in order to entitle the lien holder to his reasonable counsel fees.'

Due process and equal protection of the laws require a reasonable legislative basis to validate a classification between similarly situated individuals. Betts v. Zeller, 263 A.2d 290 (Del.Sup.Ct., 1970). The distinction between persons must be relevant to the purpose for which the classification is made. Mills v. State, 256 A.2d 752 (Del.Sup.Ct., 1969). The General Assembly has wide discretion in matters of classification, and its judgment will not be disturbed unless the act is clearly arbitrary. Aetna Casualty & Surety Company v. Smith, 36 Del.Ch. 391, 131 A.2d 168 (Del.Sup.Ct., 1957). If there is a reasonable foundation to support the distinction the Court will not question the wisdom of the legislation. State v. Robinson, 251 A.2d 552 (Del.Sup.Ct., 1969). The constitutionality of...