DeMarion Janitorial Serv. v. Universal Development, EC 84-02-GD-D.
| Decision Date | 26 December 1985 |
| Docket Number | No. EC 84-02-GD-D.,EC 84-02-GD-D. |
| Citation | 625 F. Supp. 1353 |
| Parties | DeMARION JANITORIAL SERVICES, INC., Plaintiff, v. UNIVERSAL DEVELOPMENT CORPORATION, Defendant. |
| Court | U.S. District Court — Northern District of Mississippi |
Howard Gunn, Aberdeen, Miss., for plaintiff.
J. Robertshaw, Robertshaw, Terney & Noble, Greenville, Miss., for defendant.
This is an action seeking damages for breach of contract brought by the plaintiff DeMarion Janitorial Services, Inc., (DeMarion) wherein the plaintiff alleged that the defendant Universal Development Corporation, Inc. substantially and materially breached a janitorial services contract entered into by the parties by tendering payments under the contract in an untimely manner. The defendant Universal Development Corporation, (Universal), denies that it breached the contract and by way of counter-claim alleged that it is entitled to damages for the cost of certain janitorial services that Universal provided after DeMarion abandoned the premises in Vicksburg, Mississippi. After a bench trial, the court proceeds to make its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
The parties to this action entered into a written contractual agreement on January 4, 1983 whereby DeMarion agreed to provide janitorial services to a building located at 1500 Walnut Street in the City of Vicksburg, Mississippi. At the time of execution of the contract, the building was owned by the defendant Universal Development Corporation. The contract, which was prepared by Universal, was for a term of thirty-six months commencing on January 1, 1983 and continuing up and through December 31, 1986. The written contract which very specifically set out the services to be performed by DeMarion and the frequency of the same provided that payments of $6,460.00 per month would be made during the thirty-six month term of the agreement "on or about the 15th day of each calendar month in arrears,"1 (emphasis added).
DeMarion, a Mississippi corporation, since 1972 has been in the business of furnishing janitorial services under contract for commercial and governmental buildings. Universal, an Alabama corporation, is in the business of constructing commercial buildings and leasing them to various tenants including governmental agencies and the General Services Administration. The court has jurisdiction based on diversity of citizenship pursuant to 28 U.S.C., Section 1332(a) as stipulated to by the parties in the pretrial order.
The contract which is the subject matter of the case sub judice related to janitorial services for the building situated at 1500 Walnut Street in Vicksburg, Mississippi, which was owned by Universal and was under a long term lease to the United States (GSA). Prior to entering into the three year contract in January, 1983, the parties to this action had a similar one year contract for janitorial services for the calendar year 1982. The 1982 contract had an identical provision providing for payments "on or about" the 15th day of the calendar month. The exhibits and testimony reveal that payments under the previous contract were received and deposited by DeMarion from two to twenty-six days after the 15th day of each calendar month.
The payments pursuant to the 1983 contract were with one exception mailed from Universal's office in Birmingham, Alabama to DeMarion's post office address in the City of Aberdeen, Mississippi. DeMarion's ledger sheet and testimony, together with cancelled checks introduced into evidence, revealed the receipt of payments and endorsements of the appropriate checks from Universal as follows during the year 1983, to-wit:
Month Service Rendered Received Bank Endorsement
January 2/16/83 2/17/83
February 3/14/83 3/16/83
March 4/15/83 4/17/83
April 5/11/83 5/13/83
May 6/29/83 6/30/83
June 7/22/83 7/26/83
July 8/25/83 8/29/83
August 9/15/83 9/16/83
September 10/18/83 10/20/83
Mr. Marion, the president of DeMarion drove to Birmingham to pick up the check for July, 1983 services on August 25, 1983. The remaining checks under the 1983 contract and all checks under the 1982 contract were mailed to DeMarion at its business address in Aberdeen, Mississippi. When the October check was not received on November 15, 1983, Mr. Marion called the Universal office and requested prompt payment. When the check had not been received on November 21, 1983, Mr. Marion called Universal's office two times and requested that payment be stopped on Check No. 16327 which employees of Universal stated had been issued and placed in the mail to DeMarion. Mr. Marion requested that a replacement check be issued and furnished to him. Mr. Stump of Universal refused to issue a new check until the previously issued check had been located or he had received authorization to issue a replacement or new check by his superiors at Universal. Mr. Marion, on November 21, 1983, removed all of his equipment and personnel from the 1500 Building and ceased all performance under the terms of the contractual agreement. DeMarion has performed no services at the subject premises since November 21, 1983.
On November 22, 1983 Universal mailed its letter to DeMarion stating that in its opinion the abandonment of the premises by DeMarion constituted a substantial breach of the contract and stated that they had therefore stopped payment on Check No. 16327 which had previously been mailed to DeMarion. Subsequent to November 21, 1983, Universal undertook to provide janitorial services to subject building and the uncontradicted proof was that Universal expended $167,736.47 for the period commencing on November 21, 1983 up to and including March 31, 1985. During the 10 2/3 months that DeMarion performed pursuant to the contract it expended $5,593.71 per month or a total of $59,666.24 for labor, supplies, and other expenses related to the contract. DeMarion did not question the reasonableness or necessity of the expenditures made by Universal subsequent to November 21, 1983. The witness from Universal was not cross-examined by DeMarion as to the reasonableness of the expenditures, nor was any objection made to the introduction of exhibits related to subject expenditures. DeMarion did not introduce evidence addressed to Universal's obligation, if any, to mitigate damages. The building was sold by Universal in March, 1985 with possession being delivered to the third party purchaser on April 1, 1985.
The negotiations between the parties relative to services to be performed including the time, mode, and method of payment transpired prior to the execution of the written contract on January 4, 1983. Mr. Marion, the president of the plaintiff corporation, testified that in his opinion the term "on or about the 15th day of the month" was synonymous with "on the 15th day of the month." The contract was executed by Mr. Marion, the president of DeMarion Corporation and by Mr. Ward, the president of Universal. DeMarion, although accepting payments after the 15th day of the month on numerous occasions, did protest and request earlier payments.
It was stipulated by the parties that Check No. 16327 dated November 15, 1983 was issued by Universal and that it was properly addressed to DeMarion's Aberdeen, Mississippi address. The secretary and vice-president of Universal testified that the November 15, 1983 check had been placed in the mail, postage prepaid, to DeMarion's usual business address, Post Office Box 865, Aberdeen, Mississippi 39730, prior to receiving Mr. Marion's calls on November 21, 1983. The parties further stipulated that subject check had not been returned by postal authorities to Universal. The check had not been received by DeMarion on November 21, 1983. The court finds that the check had been mailed in the ordinary and customary manner by Universal prior to November 21, 1983.
The issues presented in DeMarion's claim require this court to interpret the "on or about" language respecting payments to be made under the terms of the written contract entered into by and between the parties to this action. The court further must adjudicate the respective rights of the parties concerning the November 1983 payment for October 1983 services that was placed in the mail but not received by the payee DeMarion.
It is firmly entrenched in the jurisprudence of Mississippi that this court must, in this diversity case, construe the written contract as made by the parties, giving the words of the document their commonly accepted meaning. If no ambiguity exists, this court must accept the plain meaning of the instrument as the intent of the parties and give effect to the instrument accordingly. The court recognizes that contracts are solemn obligations and the court must give them effect as written. Freeman v. Continental Grain Co., 381 F.2d 459 (5th Cir.1967); Humble Oil and Refining Co. v. Standard Oil Co., 363 F.2d 945 (5th Cir.1966); Allen v. Powell, 260 So.2d 182 (Miss.1972); Roberts v. Corum, 236 Miss. 809, 112 So.2d 550 (1959); Hamilton v. Transcontinental Gas Pipeline Corp., 236 Miss. 429, 110 So.2d 612 (1959); Zouboukos v. Costas, 232 Miss. 860, 100 So.2d 781, sugg. of error overruled, 232 Miss. 860, 102 So.2d 121 (1958).
In the case sub judice the pertinent provisions of the contract are stated as follows, to-wit:
In return for the performance of the above services, Universal Development Corporation agrees to pay DeMarion $6,460 per month on or about the 15th day of each month in arrears for the 36 month term of this agreement.
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