Durham v. National Pool Equipment Co. of Va.

• Decision Date: 11 September 1964
• Citation: Durham v. National Pool Equipment Co. of Va., 138 S.E.2d 55, 205 Va. 441 (1964)
• Parties: George L. DURHAM, Jr. v. NATIONAL POOL EQUIPMENT COMPANY OF VIRGINIA.
• Court: Virginia Supreme Court

Page 55

138 S.E.2d 55

205 Va. 441

George L. DURHAM, Jr. v.NATIONAL POOL EQUIPMENT COMPANY OF VIRGINIA.

Supreme Court of Appeals of Virginia.

Sept. 11, 1964.

H. H. Tiffany, Waynesboro, for plaintiff in error.

Edward R. Slaughter, Jr., Charlottesville (Richard L. Williams, Battle, Neal, Harris, Minor & Williams, Richmond, on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE, SNEAD, I'ANSON and CARRICO, JJ.

SNEAD, Justice.

George L. Durham, Jr., plaintiff, instituted an action for damages in the sum of $5,000 against National Pool Equipment Company of Virginia, Alexandria, Virginia, defendant.The plaintiff alleged in his motion for judgment that defendant agreed to supply him 'all the necessary pool equipment, to call for labor as needed locally and to supervise such labor and that within fifteen days from date of breaking ground a certain swimming pool would be completed' at his motel near Crozet; that plaintiff was to pay for the equipment, labor, supervisor and other expenses necessary for the installation of the pool; that 'at the end of the job the total monies which the plaintiff had advanced would be calculated and a reimbursement was to be made, by * * * defendant, for all amounts expended or advanced which exceeded the sum of $8,000.00', and that he had 'expended or advanced' approximately $13,000 but had been unable to obtain any refund from defendant.

In its grounds of defense, defendant denied the allegations in the motion for judgment and stated that it entered into a written contract with plaintiff dated April 12, 1961, and accepted April 24, 1961 by plaintiff, whereby it agreed to supply the swimming pool equipment, and that it also entered into another written contract with plaintiff, dated April 24, 1961, whereby it agreed to furnish technical advisory service.A copy of each instrument was attached to the pleading.The defendant further alleged that there were no other agreements of any kind between the parties.

A jury trial was had on October 23, 1962.Immediately after Durham had testified, but before he had rested his case, defendant moved to strike plaintiff's evidence.The trial court, being of opinion that plaintiff's evidence failed to establish liability on the part of defendant, sustained the motion to strike, discharged the jury and entered summary judgment for defendant.The plaintiff excepted to the court's ruling and is here on a writ of error granted him.

The evidence may be summarized as follows: In the spring of 1961, Durham became interested in building a swimming pool at his motel, known as 'Tidbit Motel' near Crozet.He contacted two construction companies in Charlottesville and one of them, Ardwood Construction Company, was interested in the job.Subsequently Richard Krach of 'National Pool Equipment Company from Alexandria, Virginia' approached Durham concerning the proposed project.Durham asked Krach for a firm price on a 20' X 40' pool, but was told that he could not give one until the plans were drawn.About ten days later Krach returned with the plans.'He said he was ready to do business, that he had the plans approved and that the price was $8,000.00; that they could go to work immediately.'In the meantime Messrs. Barrett and Day of Ardwood Construction Company had prepared plans and submitted a firm bid of '$8,400.00 or $8,500.00', which Durham had accepted.A conference was had between Durham, Krach, Barrett and Day, at which time Barrett and Day agreed to rescind their contract with Durham so that he'could deal with the National Pool Equipment Company'.Later that day Durham gave Krach a check for $5,123.93.He testified:

'Q.Who was there when you gave him that check?

'A.My wife, myself, and Mr. Krach were all sitting in the booth together.

'Q.Now, did Mr. Krach make any statements about the price for the complete pool when Mr. Barrett and Mr. Day were there?

'A.He guaranteed the price of $8,000.00 in the presence of Mr. Barrett and Mr. Day, guaranteed it.

'The way I was supposed to pay for the pool was to pay the $5,123.93, which was the price of the pool equipment, the side walls of the pool, the ladders, the lights, diving board, the filtering system, the filtering media, chemical machine--chemical feeder machine, valves, mercury hygrometers--everything except the pipe and cement which I would have to buy locally.

'Everything else in this pool came from National Pool Equipment Company, which I paid for that day.

'The rest of the money was to be paid at the rate of $35.00 a day for their supervisor who they would send to me, the price of the cement and the pipe that we would buy locally, and the labor that would be needed to assist the supervisor of National Pool Equipment Company; a total of $8,000.00 or less.

'If it was less it was to my benefit.If it was more than $8,000.00--he quoted me two or three cases where National Pool had had to refund the money and had been sued for it.

* * *

* * *

'A.Of course, I was interested in the $8,000.00 figure and if it would come out less I was more interested, but I was very anxious that this not cost any more than $8,000.00. * * *.'

On April 24, 1961, the day Durham delivered the check for $5,123.93 to Krach, he signed and delivered to Krach two contracts with National Pool Equipment Co., of Florence, Alabama, which were introduced in evidence over the objection of plaintiff.One was captioned 'Quotation', which listed the pool equipment to be supplied at a price of $5,123.93.The other was 'Contract For Technical Advisory Service.'In it the company agreed to furnish an experienced and qualified technical advisor 'to assist, consult and advise' in the construction of the pool and Durham agreed to pay the technical advisor $35.00 per day plus reasonable living and traveling expenses.Pursuant to this agreement Henry Haynes, supervisor and field engineer, was sent by the company to the project, which was commenced on May 1, 1961.On May 23, Durham notified Krach that he had already expended more than $8,000 on the pool.Krach promised to come to see him the next day about it but 'he did not come.'Haynes left the project about a week before it was completed.Durham paid all the bills which totalled $12,221.76, including the $5,123.93 for equipment.

The defendant's motion to strike at the conclusion of Durham's testimony but before he had rested his case was on the ground that the contract of the parties was embodied in the two written contracts executed on April 24, 1961, which was subsequent to the alleged oral agreement, and the parties were bound by the instruments.In sustaining the motion the trial court held that the written contracts were 'completely inconsistent' with the alleged oral agreement, and that plaintiff's case could rise no higher than his own testimony.

In his assignments of error plaintiff asserts that the court erred (1) in admitting the two contracts executed on April 24, 1961, because they had not been accepted by defendant, and (2) in striking plaintiff's evidence, because the two instruments were not an integrated and merged contract of the parties, and did not constitute the entire contract of the parties and, therefore, the parol evidence rule was not applicable.

The plaintiff presents these issues in this appeal: '(1) whether the quotation and contract for advisory services can be admitted in this action as evidence, either by the plaintiff or by the defendant, and (2) whether the contract alleged by the plaintiff was barred by the parol evidence rule.'

When the two instruments were offered in evidence by defendant, plaintiff's sole objection was that they were inadmissible because it had not been shown that they had been accepted after Durham had signed them.We find this contention to be without merit.In the first place, the contract for technical advisory service was signed by both parties to it.It is true that the 'Quotation' contract was only signed by Durham, but it is manifest from his testimony that the company furnished the materials specified therein and hence formal acceptance was not necessary.Assent may be inferred from the acts and conduct of the parties.Bernstein v. Bord, 146 Va. 670, 675, 132 S.E. 698;4 M.J., Contracts, § 22, p. 352.Aside from this fact, we may consider this issue abandoned as plaintiff failed to argue it in his brief.Seerule 5:12,§ 1(d),Rules of Court.

As pointed out by defendant, the motion for judgment'apparently' did not allege that this action was based upon a contract with defendant to construct the pool.We agree with defendant that 'It alleged basically an indemnification agreement.'That is the sole ground for damages which plaintiff relied upon in oral argument before us.

The plaintiff contends here that he brought this action against National Pool Equipment Company of Virginia, whereas the instruments he signed represented an agreement with National Pool Equipment Company, of Florence, Alabama, 'a separate and distinct corporation from defendant herein.'Thus, he says, he was...