Corns-Thomas Eng'g v. County Court Of McDowell

• Decision Date: 21 November 1922
• Citation: 92 W.Va. 368
• Court: West Virginia Supreme Court
• Parties: Corns-Thomas Engineering & Construction Company v. County Court of McDowell, County.

92 W.Va. 368

Corns-Thomas Engineering & Construction Company v. County Court of McDowell, County.

Supreme Court of Appeals of West Virginia.

Submitted November 14, 1922.

Decided November 21, 1922.

1. Evidence Parol Evidence Admissible to Supply Omission from Written Contract.

Parol evidence is admissible to supply what is omitted from a written contract that does not express the entire agreement or that appears on its face not to have done so. (p. 375).

2. Same Parol Evidence Admissible to Supply Omission from Working Plan in Contract as to Depth of Excavation Agreed on.

In an action upon a written contract for erection of bridge abutments, including the excavations at specific prices per cubic yard, parol evidence is admissible to supply an omission from the working plan referred to in the contract, or specifications of the depths of the excavations, agreed upon. (p. 375).

3. Same Parol Evidence Inadmissible to Prove Depths of Excavation Different from Those in Plan Referred to in Written Contract.

If, in such an action, a plan showing the required depths of excavation was in existence at the date of the contract and is referred to therein, parol evidence is not admissible to provo such depths were different from those shown in such plan, (p. 375).

4. Same Parol Evidence Admissible to Prove Written Contract teas Procured by False Representation in Order to Prove Right to Rescind.

But, in either of such cases, parol evidence is admissible to prove that the contractor was induced to enter into the contract to do the work at prices therein specified, by a false statement made by the other party to it, or his agent, for the purpose of showing a right of rescission of the contract, on the ground of mutual mistake or mistake on the part of the contractor and fraud on the part of the other party, in connection w, ith other evidence tending to prove assertion of such right and a parol modification of the contract, to avoid the consequences of such mistake or fraud, (p. 378).

5. Contracts Parol Contract Correcting Written One by Modification or Substitution Need Not be Supported by Any Consideration.

For a parol contract made for correction of a mistake in a written one, by modification or substitution, no new consideration is necessary, (p. 381).

6. Same Agreement Modifying Written Contract or Substituting Neiv Agreement Therefor to Correct Written Contract May Arise by Conduct of Parlies.

Such modification or new contract need not be formal nor express. It may arise out of the conduct of the parties, oy implication. (p. 381).

7. Counties County Court Having Entered Into Contract Voidable by Contractor May Bind Itself by Implied Contract of Modification, in Absence of Statute to Contrary.

Unrestrained by any statute, in respect of the form or manner of its contracts for construction of roads and bridges, a county court, having entered into such a contract in writing, under circumstances rendering" it voidable at the instance of the contractor, may bind itself by an implied contract of modification or substitution, by way of elimination of the infirmity in its written contract, (p. 381).

8. Same County Court Held Bound by Implication to Modification of Contract; Notice to President of County Court of Contractor's Intention to Perform Modified Contract Held Notice to Court.

Notice to the president of a county court, of a bona fide claim on the part of the contractor in such a contract, of right of rescission thereof, strongly probative facts upon which such claim is based, his willingness to perform it with such modification as will cure its infirmity, and his intention to do so at the request of such president, is notice of such facts to the county court itself and its subsequent silence and lack of objection to the prosecution of the work, with expectation of additional compensation by way of adjustment, binds it by implication to such modification and payment of such compensation, (p. 382).

9. Same-Contractor Held Not Precluded from Rescinding Contract for Misrepresentations by Stipulation in Contract.

If, in procuring such a contract, an agent of a county court, by way of inducement thereof, makes a false representation, of such character as, under the circumstances attending it, vests in the contractor right of rescission of the contract, upon the ground of mutual mistake or mistake accompanied by fraud on the part of the agent, the contractor is not precluded from the exercise of such right, by stipulation in the contract, to the effect that, at the date of execution thereof, he was fully informed as to all conditions affecting the work to be done, as well as the labor and materials to be furnished, that such information was secured by personal investigation and research and not wholly from the estimate of the engineer, and that he will make no claim against the county court by reason of estimates, tests or representations made by any of its officers or agents, (p. 385).

10. Contract Not Construed so as to Make it Available as an Instrument of Fraud and Oppression.

A contract containing such a stipulation cannot be so construed as to make it available as an instrument of fraud and oppression, consistently with the rules of interpretation, (p. 385).

11. Appeal and Error Award of New Trial. Where Evidence is Incomplete and Verdict Palpably Excessive. Will not be Disturbed.

Award of a new trial in a case in which the evidence as to right of recovery, upon which the verdict stands is weak, incomplete and indefinite, and in which the verdict is palpably excessive, will not be disturbed by the appellate court. (D. 386).

Error to Circuit Court, McDowell County.

Action by the Corns-Thomas Engineering & Construction Company against the County Court of McDowell County. Judgment for plaintiff, and defendant brings error.

Affirmed.

Strother, Sale, Curd & Tucker, for plaintiff in error. G. L. Counts, Strother & French and G. W. Howard, for defendant in error.

Pofpenbarger, President:

The subject matter of complaint on this writ is the award of a new trial in an action of assumpsit, brought for recovery of compensation for alleged extra work under a contract for the construction of two concrete abutments and the necessary wing-walls, for each of two bridges across the Tug River in McDowell County, one of which is known as the Roderfield bridge and the other as the Negro Branch bridge. Under the contract, the plaintiff not only built the four abutments and the wing-walls, but also made the excavations for the same, and the work sued for as being extra was done in connection with the excavations for the abutments. The jury returned a verdict in favor of the plaintiff for $15,543.12, which the court set aside.

In the two contracts, one for the work for each bridge, unit prices for excavation and for concrete were adopted. For the work at Roderfield, $5.00 per cubic yard was agreed upon for the excavation, and $18.00 per cubic yard for the concrete. For the Negro Branch work, the prices were, respectively, $2.25 and $17.50. This controversy arises out of alleged misrepresentations by a civil engineer, an employee of the County Road Engineer of McDowell County, to the plaintiff's president and general manager, as to the depth of the excavation for the abutments, made, if at all, before the plaintiff's proposals to do the work were filed. These representations, if made, were that the excavations for the abutments for the Roderfield bridge would be six feet in depth and those of the Negro Branch bridge, six feet on one side and eight feet on the other. They were made upon the assumption that the depths named would carry the excavations to solid rock. Prior to the date on which they are alleged to have been made, some soundings had been made by which it was supposed solid rock had been reached or located at the depths named. It turned out, however, that they went down only to holders lying on or above the solid rock which it became necessary to take out, to the end that a better foundation than they afforded might be obtained. For the east abutment at Roderfield, it was necessary to go about one foot deeper, and for the west abutment about three feet and six inches deeper, than was contemplated. For the east abutment of the Negro Branch bridge, it was necessary to go to a depth of 12.4 feet and for the west abutment, 6.8 feet. This charge of verbal representations as to the depth of the con- templated excavations is supplemented by the further statement that at the time of the making of the proposals, the engineer also represented that the County Court then had no drawings or specifications showing the depths of the excavations. In the testimony of the engineer, there are specific denials of all of these charges. He claims the specifications were filed in the, office and were given to all bidders and he supposes the plaintiff's representative saw them. He does not claim, however, that he knows they were actually in the hands of the representative or that they were tendered to him for inspection. The latter admits that a blue print purporting to set forth the plans of the masonry for the bridge at Roderfield, was shown to him before he filed his proposals for the work, but denies that it indicated the depths of the excavations. With his testimony, he files the blue print or one like it, and it does not specify such depths. There is nothing in the record to indicate that any other working plan for the Roderfield bridge was furnished to the plaintiff; but, at some time, a blue print showing the design and specifications for the work at Negro Branch was furnished. The contention of the defendant is that this plan was in its engineer's office at the date of the contract. On the other hand, the plaintiff contends it was furnished after the contract had been made and possibly after the work had been commenced. As to when it was furnished, his evidence is indefinite and unsatisfactory, but he positively denies it was produced when he bid...