O'Haire v. Breton

• Decision Date: 31 March 1960
• Parties: Robert E. O'HAIRE v. Roland H. BRETON.
• Court: New Hampshire Supreme Court

Page 805

159 A.2d 805

102 N.H. 448

Robert E. O'HAIRE v. Roland H. BRETON.

Supreme Court of New Hampshire.

Argued Feb. 2, 1960.

Decided March 31, 1960.

SYLLABUS BY THE COURT

1. In action for breach of building contract alleging improper installation of a "shallow dug tile well," evidence of a written inspection report made by an independent consultant at the request of the Veterans Administration, which had planned and periodically inspected the construction of the plaintiff veteran's home, dealing with the water situation on the premises and dated only a few days after such inspection was admissible as an exception to the hearsay rule where the declarant had deceased and the report, made with no motive to misrepresent, was apparently trustworthy.

2. The fact that such report contained statements of opinion did not render it inadmissible where it was impliedly found by the Trial Court's admission of it in evidence that the declarant was qualified to give an opinion and that his views would probably aid the jury.

3. In an action for failure to properly install a "shallow dug tile well" in accordance with the terms of a written contract, the issue of what the parties intended by the language used was properly submitted to the jury where there was conflicting evidence as to the type of well and of performance intended by the parties and whether the defendant complied with their intent.

4. However, where the defendant's requested instructions called to the Trial Court's attention the general rule that a contract to install a well does not in the absence of a provision therefor guarantee quantity or quality of the water to be produced, it was error to permit the jury to find that there was such an undertaking without instructions that the jury first find the contract so provided if given the meaning which would usually be given to it by reasonable men in the position of the parties.

5. In an action for breach of a building contract the defendant was not entitled to a directed verdict for the reason that the Veterans Administration, charged under the contract with determining whether the work was in conformity with the plans and specifications, could release final payment due the defendant where the evidence was not conclusive that either the plaintiff or the Veterans Administration on his behalf accepted defendant's performance as full and complete under the terms of the contract.

Assumpsit, for breach by the defendant of a contract to construct a house for the plaintiff in Center Harbor.

The contract, dated March 3, 1954, provided that defendant as contractor 'shall furnish all labor and material equipment necessary or proper, to the work contemplated by the contract, or required by, and in strict accordance with the plans, specifications, and addenda prepared by the Contractor, and will perform all other obligations imposed upon him by this contract.'

Addendum No. 1, dated March 10, 1954, provided for the following supplemental work. 'Entrance Gate Install one electrically operated gate at entrance of right of way, as shown on sketch. Gate is to be approximately 10' -0"' wide, to be operated from a key switch, located so that it can be easily accessible from the driver's seat. Well Install a shallow dug tile well to be connected to electric pump, furnished by the contractor and serving entire water supply system on property'.

Three claims made by the plaintiff of violations of the contract by the defendant were submitted to the jury by the Trial Court. They pertained to the well and pump, a kitchen sink and the electric gate. A verdict for the plaintiff resulted.

Defendant excepted to the admission and exclusion of evidence and to the denial of certain requests for instructions to the jury and of his motion for a directed verdict. His bill of exceptions was allowed and transferred by Griffith, J.

Nighswander, Lord & Bownes and William T. Krasnow, Laconia, for plaintiff.

Sheehan, Phinney, Bass, Green & Bergevin and Gerald O. Bergevin, Manchester, for defendant.

LAMPRON, Justice.

The first issue to be decided is the admissibility of a written report made to the Veterans Administration by one Richard M. Yousoufian concerning the shallow well and pump installed by defendant on plaintiff's premises.

The plaintiff as a paraplegic veteran obtained a grant toward the cost of his home from the Veterans Administration. Staff personnel in its Manchester office drew the plans and inspected plaintiff's property periodically during the course of construction. According to the contract between plaintiff and defendant disbursements were to be made to the builder at certain stages of construction and 'no stage shall be considered to have [been] completed until all preceding stages have been completed in conformity with the plans and specifications and approved by the Veterans Administration.'

Upon complaint to it by the plaintiff about the water supply the Veterans Administration retained Mr. Yousoufian as 'an independent engineer to investigate the water situation at Mr. O' Haire's place.' As a result the report in question, dated November 12, 1955, states that 'the writer made an inspection of the property * * * on November 5, 1955 in order to determine the cause of the faulty flow of water in the present domestic water installation and to recommend remedies for any conditions requiring correction.' Among 'the conclusions reached by the writer' were the following: '2. The condition of the shallow well indicates its unfitness for human consumption. 3. The entire installation including the pumping unit is inadequate for the requirements.' Mr. Yousoufian was deceased at the time of the trial.

The evidence offered is the written report of an inspection made at the request of the Veterans Administration by a consulting engineer, now deceased. It deals with the water situation on premises of the plaintiff veteran, the construction of whose home the administration has planned and periodically inspected as part of its operation.

To qualify such a report as an exception to the hearsay rule there must be a necessity for its admission as evidence and the circumstances under which it was made must be such as to guarantee that the contents are fairly trustworthy. Lebrun v. Boston & M. Railroad, 83 N.H. 293, 299, 142 A. 128. The death of the declarant satisfies the requirement of necessity. Roberts v. Claremont Power Co., 78 N.H. 491, 494, 102 A. 537. The report is dated a few days after the entrant made an inspection of plaintiff's premises for the purpose of investigating the water situation. His inspection and report were made in his capacity as a consulting engineer. There was no evidence of any controlling motive to misrepresent. By admitting the report in evidence it must be assumed the Trial Court found that it was apparently trustworthy and there being evidence to support this conclusion it will not be disturbed. Williams v. Williams, 87 N.H. 430, 432, 182 A. 172.

The fact that the report contained opinion statements did not make it inadmissible. Under our rule the admission of opinion evidence depends upon whether or not in the sound discretion of the Presiding Justice evidence of that nature will probably aid the jury. The question of whether the testimony of a witness offered as an expert may be received is also within the discretion of the Trial Court. Dowling v. L. H. Shattuck, 91 N.H. 234, 17 A.2d 529. Here again it must be assumed...