Frederic P. Wiedersum Associates v. National Homes Const. Corp., 957
| Decision Date | 12 August 1976 |
| Docket Number | D,No. 957,957 |
| Citation | 540 F.2d 62 |
| Parties | FREDERIC P. WIEDERSUM ASSOCIATES, Plaintiff-Appellee, v. NATIONAL HOMES CONSTRUCTION CORPORATION, Defendant-Appellant. ocket 76-7021. |
| Court | U.S. Court of Appeals — Second Circuit |
Harry L. Simmons, New York City (Milbank, Tweed, Hadley & McCloy, Russell E. Brooks and Charles D. Bethill, New York City, on the brief), for defendant-appellant.
Thomas C. Morrison, New York City (Rogers & Wells and William H. Mulligan, Jr., New York City, on the brief), for plaintiff-appellee.
Before LUMBARD, ANDERSON and OAKES, Circuit Judges.
In January of 1973, the United States Navy announced that it was inviting proposals for the construction of a 200-family housing project at the Naval Weapons Station in Charleston, South Carolina. The architectural firm of Frederic P. Wiedersum Associates (Wiedersum) received a copy of the Navy's notice and wrote to National Homes Construction Company (National), a general contracting firm, expressing its interest in submitting a proposal with the latter firm for the construction of the Navy project. National replied, on January 29, 1973, that it "look(ed) forward to the opportunity of submitting a proposal along with Frederic P. Wiedersum Associates on this Project." The present action arises out of the failure of National to submit a bid, which Wiedersum said National was obligated to do under their contractual relationship. It alleged that National's breach of this obligation damaged Wiedersum in the amount of $250,000. The case was tried before a jury, which found that Wiedersum had been damaged in the amount of $150,000 and judgment was entered in this sum in favor of Wiedersum. National has appealed. For the reasons stated below, we reverse and remand for a new trial.
The parties' mutual interest in the South Carolina project represented the latest of several joint attempts to obtain construction contracts, none of which had been successful. Wiedersum alleged in the present action that the parties had agreed to apply the terms of a 1971 contract to their work on the South Carolina project. National denies this, but concedes that the procedures followed for the South Carolina project resembled those followed in their earlier joint attempts. These basically involved, in sequence, the preparation of preliminary site plans by Wiedersum; joint review of those plans by both parties; the subsequent preparation of final plans by Wiedersum; the procurement by National of bids from potential subcontractors and suppliers; National's calculation of an overall bid price on the project; and submission of the proposal. It was understood that Wiedersum would receive its fee only if the bid was accepted; otherwise each party would bear its own costs.
Evidence presented at the trial indicated that the parties did in fact collaborate to a substantial extent. In its complaint, Wiedersum alleged that it sent National the final plans "(o)n or about April 4, 1973"; however, at trial Wiedersum showed that it had sent two sets of "final plans": one set was sent on March 30, and the other, which allegedly varied from the first only in minor and immaterial detail, was sent on April 5, 1973. Both sets of plans became crucial factors in the case, because, in addition to asserting that it was in no event contractually bound to submit a bid to the Navy, National claimed that Wiedersum had failed to provide final plans in time to make submission of a bid feasible, and that the plans were inadequate to meet the Navy's criteria for the South Carolina project.
In the pre-trial stages of this litigation, National took the position that, as of April 2, 1973, it had received no plans, other than preliminary site plans. At the trial, however, it admitted that it had in fact received the March 30 plans. Thus, its claim on the issue of timeliness resolved itself essentially into a contention that the March 30 plans were not "final" because they differed from the plans of April 5. The district court, however, restricted National's efforts to point out these differences on the ground that this evidence went to the issue of the sufficiency or suitability of the plans for submission to the Navy, an issue which the court had previously ruled had not been pleaded by National and was therefore precluded from the litigation. The district court also refused to allow National to introduce into evidence Wiedersum's complaint which referred only to April 4 as the date on which final plans were sent. On appeal, National challenges as erroneous each of these rulings. It also attacks, inter alia, the court's instructions to the jury in several respects, as well as the court's refusal to inform counsel prior to summation what its rulings were on the parties' requests to charge. Finally, National contends that there was no factual basis for the amount of damages awarded by the jury.
In arguing that the evidence relating to the adequacy vel non of its plans was properly excluded, Wiedersum characterized the issue as one of failure of consideration, which Rule 8(c) of the Federal Rules of Civil Procedure requires to be pleaded specially as an affirmative defense. National had not so pleaded, nor had it mentioned inadequacy of the plans in its answer to Wiedersum's interrogatory concerning National's reasons for not submitting a bid to the Navy. National contends, however, that proof of the plans' conformity to the Navy's requirements was an element of Wiedersum's affirmative case, because it went to show whether the latter was actually damaged by National's failure to bid on the project.
It is true that under the terms of the alleged contract, Wiedersum would not be compensated for its work unless the bid was successful and presumably the Navy would not have accepted the plans if they failed to conform to its requirements. It is clear from the record, however, that Wiedersum was not attempting to recover damages on the theory that a bid based on its plans would have been successful if submitted by National or at least Wiedersum's evidence was entirely insufficient to support a recovery under such a theory. National, therefore, did not suffer prejudice because of the district court's ruling on this point.
Whether or not that ruling was correct, National further contends that the district court misapplied it in excluding evidence as to the differences between the March 30 and the April 5 plans. We agree. Wiedersum conceded that National had to receive the final plans at least six to eight...
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