Earl T. Browder, Inc. v. County Court of Webster County

• Decision Date: 25 March 1958
• Docket Number: No. 10898,10898
• Citation: 143 W.Va. 406,102 S.E.2d 425
• Court: West Virginia Supreme Court
• Parties: EARL T. BROWDER, Incorporated, v. The COUNTY COURT OF WEBSTER COUNTY, West Virginia, a Corporation.

Page 425

102 S.E.2d 425

143 W.Va. 406

EARL T. BROWDER, Incorporated, v.The COUNTY COURT OF WEBSTER COUNTY, West Virginia, a Corporation.

No. 10898.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1958.

Decided March 25, 1958.

Syllabus by the Court

1.Point 5, syllabus, Goshorn's Ex'rs v. County Court, 42 W.Va. 735[26 S.E. 452], is approved and applied: 'The county court is a corporation created by statute, and can only do such things as are authorized by law, and in the mode prescribed.'

2.Point 4, syllabus, Goshorn's Ex'rs v. County Court, 42 W.Va. 735[26 S.E. 452], limited and distinguished.

3.Parties to a contract may make submission of disputes between them to arbitration a valid condition procedent to suit on the contract, and suit may not be brought on such contract until an award is made unless arbitration has been excused by waiver or for other good cause as a refusal or failure by a party to proceed with the arbitration.

4.'A verdict of a jury will be set aside for the admission of improper evidence, over objection, where it is apparent that such evidence was misleading, and prejudicial to the party complaining.'Point 4, syllabus, Foundry Co. v. Wheeling Steel & Iron Co., 58 W.Va. 62[51 S.E. 129].

E. V. Morton, Jr., Wysong & Wysong, Webster Springs, for plaintiff in error.

Brooks Callaghan, Richwood, Pettigrew, Samms & Pettigrew, S. L. Flournoy, Charleston, for defendant in error.

DUCKER, Judge.

Earl T. Browder, Inc., a corporation, brought this action of assumpsit against the County Court of Webster County, West Virginia, in the Circuit Court of said County, for the recovery of money claimed as due and owing to the plaintiff under a contract between the parties for the construction by the plaintiff of the Webster County Memorial Hospital, and for other work and services in addition thereto, upon the trial of which cause the jury returned a verdict in favor of the plaintiff for $30,000, and it is to the judgment of the Circuit Court for plaintiff for that amount that this writ of error is prosecuted by the County Court as plaintiff in error.In this opinion the defendant in error will be referred to as the plaintiff and the plaintiff in error as the defendant.

The plaintiff, a building contractor and the successful low bidder, was awarded a contract for the erection of the hospital at a total base contract price of $365,617, and a formal written contract containing the provisions, plans and specifications was entered into between the parties, and work thereunder was begun in the Spring of 1951.With regularly made and unquestioned change orders an additional $39,295.90 was added to the contract price, thereby increasing the total contract price to $404,912.90.The balance due, according to defendant's contention, was paid to the plaintiff on November 12, 1952, but the amount paid did not cover the plaintiff's claim (1) that it is entitled to additional compensation in the amount of $60,714.13, plus interest, to cover the cost of solid rock excavation as 'unclassified excavation' under a provision of the contract specifying the price of $15 per cubic yard which plaintiff claimed was not covered by the charge made for the excavation of clay, loose stone and hard clay, (2) an additional sum of $22,426.93, plus interest, for the excavation and removal of dirt and rock situate immediately to the rear of the hospital building and also not covered by the original formal contract, and (3) an additional sum of $1,566.91, plus interest, to cover the cost of hauling and storing of certain hospital furniture and equipment which was also not provided for or covered in the original contract, said three additional amounts claimed by the plaintiff in this action totaling $84,707.97, plus interest, from the dates of the invoices for such work.Formal demand with itemized statement as required by law was made by the plaintiff upon the defendant before the institution of this suit.

These claims are made in the declaration, both under the common counts in assumpsit and special counts, and legal liability therefor is denied by the defendant in its demurrer and special pleas, the plaintiff claiming the $60,714.13 under the terms of the written contract, the $22,426.93 and $1,566.91 under oral agreements and on quantum meruit or quantum valebant.The defendant defends on the basis of alleged invalidity of the first item because the contract was not modified by any change order and because there was no submission of the claim to arbitration as provided for in contract, and the second and third items, and also the first, as not being legal obligations of the County Court because not authorized or approved by formal and recorded court action.

There is no dispute as to, or any alleged dissatisfaction with, the physical performance of the work done by the plaintiff.The completed hospital was formally accepted by the County Court from the contractor on October 13, 1952.The plaintiff, before receiving the final payment covered by a check dated November 12, 1952, which check recited that it was for 'balance due contract' wrote to the defendant, with a copy of the letter to defendant's architect, that plaintiff had incurred additional expense on account of rock excavation in the amount of $31,671.70, and that as 'there was a difference of opinion concerning this additional expense item', plaintiff desired the submission of the question to arbitration in accordance with the provisions of the contract, and further that 'the check which was understood to be in the mail could not be treated by plaintiff as final payment'.Defendant's architect acknowledged receipt of the plaintiff's letter but defendant denied ever having received it.A later offer by plaintiff to defendant to arbitrate was made in June, 1955, and refused by defendant on the basis that it was too late under the terms of the contract.

There is testimony to the effect that trips were made by the plaintiff to Webster Springs and that various conversations were had between Earl T. Browder, president of plaintiff corporation, D. V. Cutlip, president of the County Court, and the architect, but nothing further was done about the first proposal to arbitrate or in regard to any additional payment.Although the final statements rendered by plaintiff to defendant before the institution of this suit were for the items of $60,714.13, $22,426.93 and $1,566.91, to which were added interest charges to date, and the first two were recited to have been based on invoices of the plaintiff dated November 21, 1952, the letter of the plaintiff to defendant dated November 12, 1952, recited only the item of $31,671.70 as being the additional expense item on which arbitration was requested.The item of $1,566.91, being a charge back against plaintiff or deduction from the original amount admittedly due plaintiff and not having been discovered by plaintiff until the check was received by plaintiff, is understandable as not being in the mind of the plaintiff when plaintiff's letter of November 12th was written, but the figures of $31,671.70 do not correspond with either the $60,714.13 or the $22,426.93 items of the plaintiff's claim, but from the wording of the letter to the effect that the additional compensation is for 'additional unforseen expenses involved in completing the excavation, grading and all earth handling and moving in the above property, insamuch as we encountered a rock condition instead of dirt and clay, as indicated upon the plans submitted to us for our bid in the first instance', it is apparent that this amount of $31,671.70 was for the work done for which the defendant was later invoiced in the amount of $60,714.13.While this discrepancy in the amount of the claim did not itself preclude the plaintiff from claiming that the invoice figures are correct, it nevertheless made some factual issue on the question which may have been taken into consideration by the jury.

The basis of plaintiff's claim represented by the item of $60,714.13 is, as has been indicated, that the test holes which defendant had had drilled for the determination of the structure of the earth to be excavated showed hard clay and not rock, and that plaintiff had the right to rely upon that representation, but that if it did not have such right then it was protected by the provision in the contract which specified that the excavation of rock came within the 'unclassified excavation' and was to be paid for at the rate of $15 per cubic yard plus other necessary incidental costs.

The basis of the plaintiff's claim represented by the item of $22,426.93 is that this is for the additional work done in the excavating and removing of the rock cliff near and to the rear of the hospital building so as to provide entrance way and parking space to the rear of the hospital and that work was done by the plaintiff at the request was of the president of the County Court and with the knowledge of the other members of the Court and the architect, but without any formal County Court order or contract authorizing or approving such work.This item, with interest thereon from the date of the ininvoice, namely November 21, 1952, until the date of the verdict on September 29, 1956, would total approximately $27,600.

The basis of plaintiff's claim for $1,566.91 is for work outside the contract for moving and installing hospital equipment which the president of the County Court requested plaintiff to do because it was necessary to move the equipment from the railroad station and put in the hospital.This item of plaintiff's claim was first paid for by the defendant and then upon a later payment to the plaintiff deducted from the balance which defendant admitted was due.The purported reason given by the defendant for such deduction was that the seller of the equipment, who was not the plaintiff, had agreed to cover such costs.This item, with interest from October 20, 1952, until...