Collins v. Gabrielle, 9868
| Decision Date | 27 March 1958 |
| Docket Number | No. 9868,9868 |
| Citation | 139 A.2d 874,87 R.I. 235 |
| Parties | Mary C. COLLINS v. Americo GABRIELLE. Ex. |
| Court | Rhode Island Supreme Court |
Hinckley, Allen, Salisbury & Parsons, Douglas W. Franchot, Providence, for plaintiff.
Thomas J. Capalbo, Westerly, for defendant.
This is an action of assumpsit to recover damages based on an alleged breach of an oral contract. After a trial before a justice of the superior court sitting without a jury a decision was rendered for the plaintiff. The case is before us on the defendant's exceptions to such decision and to other rulings on evidence during the trial.
The plaintiff is the owner of a parcel of property adjacent to the water front at Misquamicut Beach in the town of Westerly. This property, which she operates as a hotel, consists of two buildings, one containing sleeping quarters for guests, and the other, which is involved in the instant action, containing kitchen and dining room facilities on the main floor and bathhouse, storage, refrigeration and heating facilities in the cellar. The latter building was severely damaged by the hurricane of August 31, 1954. It appears that sea water driven by the hurricane flooded the building, carrying great quantities of sand into the cellar, smashing in the seaward side of the building and destroying the contents therein.
On or about October 10, 1954 plaintiff and her brother, who helped her in the operation of the hotel, met defendant at the premises for the purpose of discussing plans to rebuild the damaged property and more particularly the construction of a wall on the side of the building facing the water. The plaintiff and her brother testified in substance that at this meeting they told defendant they wanted a solid concrete wall similar to the other three walls of the cellar; that they wanted the wall built for the purpose of keeping out the ocean water and as a protection against future storms and storm water; and that defendant suggested the construction of a stone and cement wall, which he stated would serve their purpose just as well as a solid concrete wall and would be cheaper to build because no expensive forms would be required.
They further testified that defendant stated he was familiar with stone and cement work; that he preferred that kind of construction; and that he showed plaintiff a similar wall he had built on neighboring property which he said had withstood the recent hurricane. The plaintiff's brother testified that he was familiar with the latter wall on the neighboring property, and that it was well pointed with cement and had no voids in it.
It appears that at this conference plaintiff and defendant entered into an oral agreement whereby defendant agreed to construct a stone and cement wall running the entire width of the building for approximately 47 feet with returns on both ends of three or four feet in length, and that it would be two feet wide with footings three feet in width. Sometime after defendant commenced the construction of the wall he handed plaintiff an unsigned, handwritten memorandum which set forth the dimensions of the wall, the price of $1,150 which was agreed upon, and the time when payments were to be made.
The defendant completed the construction of the wall and was paid the stipulated sum. However, in August 1955, after a heavy rainstorm, plaintiff discovered that water had come through the wall and flooded the cellar. The plaintiff's witnesses testified that their investigation showed that the interstices or voids between the large stones at the bottom of the wall were not filled with cement; that an arm up to the elbow could be thrust between the stones; and that by reason of these open voids the wall was not waterproof or water resistant. Expert witnesses presented by plaintiff testified that it would cost $24 per linear foot to do the work necessary to make the wall serve the purpose of protection against water damage.
The defendant's testimony on the main issue was in direct conflict with that of plaintiff, namely, whether the oral agreement in question contemplated the construction of a waterproof wall. He testified that no mention had been made to him concerning a waterproof wall; that he agreed to build a footing and wall in accordance with the terms of the unsigned written memorandum which he gave plaintiff and which contained no mention of a waterproof wall; and that the purpose of the wall so far as he was informed was merely to give support to the building. He offered no evidence on the question of damages.
After carefully reviewing the evidence the trial justice stated that the testimony of plaintiff and her brother relating to the oral agreement was more credible in view of the undisputed physical circumstances. He pointed out that the agreement in question was made right after the hurricane of 1954 during which the former cellar had been washed away; that the dimensions and structure of the wall seemed to be more consistent with plaintiff's version that it was for the purpose of withstanding sea water or flood water rather than as a support for the building; and that there was no evidence that such a massive wall would have been necessary for the limited purpose of support. For these reasons he concluded that plaintiff had asked defendant to construct a wall which would be normally waterproof; that the unsigned written memorandum produced by defendant was handed to plaintiff after the contract had already been made; and that the terms of the memorandum were not inconsistent with plaintiff's testimony that the wall was to be waterproof, since there was no disclosure in the memorandum that the wall would not be so morticed with cement as to be waterproof or water resistant.
For these reasons, and in view of his finding that the testimony was practically undisputed that the wall as constructed was neither waterproof nor water resistant and that it contained large voids through which water could readily flow, the trial justice decided that defendant did not carry out his contract with plaintiff and therefore on the basis of the testimony of plaintiff's expert witnesses he assessed damages in favor of plaintiff in the sum of $1,030.
The defendant's first four exceptions are based on his contention that there was insufficient evidence to support the decision of the trial justice that defendant agreed to build for plaintiff a footing and wall for the purpose of withstanding sea water or flood water, rather than merely for the purpose of supporting the building.
After carefully examining the record it is clear that the evidence on the main issues is in direct conflict. The trial justice, who had an opportunity to see and hear the witnesses, gave...
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