Haddad v. Western Contracting Co., Civil Action No. 106-F.

• Decision Date: 26 March 1948
• Docket Number: Civil Action No. 106-F.
• Parties: HADDAD v. WESTERN CONTRACTING CO. et al.
• Court: U.S. District Court — Northern District of West Virginia

76 F. Supp. 987

HADDAD v. WESTERN CONTRACTING CO. et al.

Civil Action No. 106-F.

District Court, N. D. West Virginia.

March 26, 1948.

Stathers, Stathers & Cantrall and William G. Stathers, all of Clarksburg, W. Va., and Howell Leuck and Edward E. Edmiston, both of Cleveland, Ohio, for plaintiff.

Steptoe & Johnson, James M. Guiher, and Edward W. Eardley, all of Clarksburg, W. Va., and Lowell C. Kindig, of Sioux City, Iowa, for defendants Western Contracting Corporation, Ralph C. Myers Construction Co., Foster Myers, Clyde Goen, and Ralph C. Myers Construction Co.

Thomas B. Jackson, of Charleston, W. Va., for defendant National Surety Corporation.

WATKINS, District Judge.

Plaintiff, a subcontractor in the construction of the Wood County Airport at Parkersburg, W. Va., brought this suit against the principal contractor, Myers-Western, for breach of the subcontract, seeking to recover for material and labor put into the project and for anticipated profits under the subcontract. Plaintiff claimed that after part performance on its part, the principal contractor breached the subcontract, making it impossible for plaintiff to finish the job. Under the terms of the subcontract plaintiff agreed to do the drainage on the airport. Defendant was to do the grading in accordance with certain plans and specifications in preparation for the drainage work. Plaintiff contended that defendant breached its contract in failing to do the grading in accordance with such plans and specifications, thereby increasing the cost of the drainage work to such extent that it became necessary for plaintiff to leave the job before completion. Defendant denied any breach of contract on its part and filed a counterclaim against plaintiff for the cost of completing the job. The issues were presented to a jury which returned a verdict for plaintiff in the amount of $22,808.43. Defendant moved for judgment notwithstanding the verdict and in the alternate for a new trial.

The motion for judgment notwithstanding the verdict is denied. The evidence was definitely conflicting upon the question of which party first breached the contract. There was ample evidence offered by plaintiff, which, if believed by the jury, would justify a verdict for the plaintiff. The motion for a new trial was based upon several grounds. First, it was contended that plaintiff's evidence, even though believed by the jury, was insufficient to show a breach of contract by defendant. For reasons previously stated there is no merit in this contention.

The second point urged by defendant is that the court should not have permitted an item of $8,262.31, claimed by plaintiff for extra work in the ravines, to be considered by the jury. I can not agree with defendant that there are no pleadings to support this claim and that it is not a recoverable item in this action. Defendant also says that plaintiff bid what amounted to $4,224.91 for this extra work, and was paid therefor. Plaintiff testified that his bid was for hauling the pipe to the surface of the airport and for laying it on the surface of the airport. He says that the $8,262.31 item now claimed by him was the actual cost to him of other and additional work ordered by defendant, namely, hauling the pipe to the ravines and laying the pipe in the ravines, a much different and much more costly job than what he had bid upon. Under the evidence I am of opinion that this was a jury question.

The next and most substantial point urged by defendant is that the court erred in submitting to the jury over defendant's objection an item of $27,000 for loss of anticipated profits which plaintiff claims he would have realized in completing the contract, except for defendant's breach of contract. Defendant says that the evidence as to such profits was so meager and uncertain that such item of profits should have been withdrawn from the case. The point was timely raised by motion at the conclusion of plaintiff's evidence, at the conclusion of all evidence and by exception to the court's charge.

About the only evidence offered by plaintiff as to prospective profits was as follows: He was an experienced contractor and took the drainage job for $151,000, then estimating that he would make about 20% or approximately $30,000 profit on the job. At the trial he gave it as his opinion that taking weather conditions, transportation and labor difficulties, other losses, difficulties and miscalculations, his profit on the job would have been $27,000. He also offered in evidence an itemized statement of his expenditures for labor and material while he was on the job completing about 20% of the drainage contract. Plaintiff conceded that he had lost $15,000 on the job before the alleged breach by Myers-Western occurred. In fairness to him, however, it is apparent that this item of loss included the sum of $8,262.31 which plaintiff claimed was still coming to him because of extra work. It is also apparent that the initial cost of getting materials and labor on the job preparatory to beginning the work would be the most expensive part of the job and the work would not likely show a profit at that time. Defendant also urges that after the alleged breach of contract on February 12, there were many days when the weather prevented work and there were labor strikes. These and other points mentioned above are urged by defendant to show that there was no reasonable expectation of profit by plaintiff. The evidence shows that in figuring the cost of the job plaintiff took into account all such weather conditions and figured only 20 working days to the month, also that strikes which closed down operations for four days were attributable to defendant. Of course, under the defendant's interpretation of the contract, there could have been no profit to plaintiff. The jury evidently rejected defendant's theory of the case. Under plaintiff's evidence, if believed, the fact that profits would have been realized by plaintiff, except for the breach of contract by defendant, was established with reasonable certainty. No evidence was offered by plaintiff as to how much material and labor it would take to complete the job, if the grading had...