Hall v. MacLeod

• Court: Virginia Supreme Court
• Writing for the Court: MILLER
• Citation: Hall v. MacLeod, 191 Va. 665, 62 S.E.2d 42 (1950)
• Decision Date: 27 November 1950
• Docket Number: No. 3690,3690
• Parties: W. N. HALL v. KATHERINE MACLEOD AND COLIN MACLEOD, JR. Record

Page 42

62 S.E.2d 42

191 Va. 665

W. N. HALL v. KATHERINE MACLEOD AND COLIN MACLEOD, JR.

Record No. 3690.

Supreme Court of Appeals of Virginia

November 27, 1950.

Elijah B. White, for the plaintiff in error.

Stirling M. Harrison, for the defendants in error.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

Katherine and Colin MacLeod, Jr., instituted this action against W. N. Hall for alleged breach of contract. None of the parties demanded trial by jury and all matters of law and fact were submitted to the judge for determination. From a judgment rendered against him for $2393.16, W. N. Hall obtained this writ or error.

The proved facts and not the evidence are certified to this court. In such instance, no presumption as to the finding of the lower court exists for or against either party. Burk's Pleading and Practice, 3rd Ed., sec. 400, p. 752.

It appears that the evidence was reasonably developed and the cause fairly tried. It now becomes out duty to apply the law to the facts proved and enter final judgment upon the merits if the facts certified are such as to enable us so to attain the ends of justice. Sec. 8-493, Code, 1950. However, unless the judgment appears to be based upon erroneous inferences from the facts we should not disturb it. Slaughter v. Tutt, 12 Leigh (39 Va.) 147.

With omission of wholly immaterial matter, the facts certified are:

'That the plaintiffs owned a farm in Fauquier County, Virginia, and in the fall of 1947 contracted orally with the defendant, through the defendant's foreman and agent, one Charlie Ball, to construct a shed to shelter horses and other stock with a hay loft above on said farm, the construction thereof to be similar in general to that of a shed on the farm of some neighbors by the name of Archbold.

'Ball inspected the Archbold's shed and told the plaintiffs that he could follow the example of said shed and build a similar shed of the size that the plaintiffs wanted, which was 50' X 24'; that the said Ball as foreman and agent of the defendant during the winter of 1948 undertook and did build a shed with the hay loft above, completing same during the month of March of said year;

'That the said hay loft was filled with baled green hay, baled by a pick-up baler, in the summer of 1948; and the said hay loft and building collapsed during August of that year; that the ground floor of the said shed was built of cinder blocks across both sides and the rear, while the front was left open. There were three vertical steel posts spaced at intervals of 12 1/2 feet across the front. A wooden girder measuring 6' X 12' was strung across the front a distance of 50 feet rested on the three vertical steel posts in the front and the wall of the building in the rear.

'That upon the collapse of the building two of the aforesaid steel posts were pushed out in front of the building, one of them having been found about 50 feet from the building. The third post remained in place. None of the posts were bent. The wooden girders which ran from the front to the rear of the building were broken;

* * *

'* * * that the negotiations concerning the construction of said building were conducted by Colin MacLeod, Jr., on the part of the plaintiffs and Charlie Ball on the part of the defendant; that Colin MacLeod, Jr., knew nothing concerning architecture or construction and that Charlie Ball had been engaged in construction business for 25 years.

'That Colin MacLeod, Jr., requested Charlie Ball to use only three vertical upright supports along the front of the shed upon which to support the hay loft giving as his reason that other internal vertical supports would be hazardous to brood mares and other livestock bumping against same; and asked Charlie Ball if this could be done and Charlie Ball answered in the affirmative, stating that he could construct the building with the use of the three vertical supports and that it would stand up;

'That said vertical steel posts were not attached to the girders at their point of contact therewith nor were they attached at their base. That said posts each rested on an iron plate on a square concrete block and at the top the girders rested on a similar iron plate which in turn rested on the steel posts;

'That defendant had constructed other buildings for the plaintiffs, among which were barns and hay lofts;

'That plaintiffs only used baled hay which the defendant knew;

'That the Michigan hip roof, as used on this building, is built in such a way that it results in the construction of a loft which has a larger cubic content than does a loft built with a slant roof which gives an inverted V-shaped appearance;

'That the building may have been constructed in a skillful and workmanlike manner to a certain extent, but it was not constructed in such a manner as would bear the capacity of the hay loft when full. * * *.'

Plaintiff in error insists (1) that the trial court was not justified in inferring that there was an implied warranty from the language used that the building would be substantial and reasonably fit for the purposes intended, i.e., housing of stock and storage to capacity with baled hay, and (2) that if such warranty was within the contemplation of the parties (a) Charlie Ball was without authority to make it, (b) but if so, there had been an acceptance of the completed building which constituted a waiver of all defects, if any, in its construction.

The contract is oral and the intention of the parties thus rendered more difficult to ascertain. Yet it must be sought from the facts proved and when ascertained, if it be not contrary to law then it must be given effect for it is the criterion by which their rights are measured and their obligations determined. Moore v. Chesapeake, etc., R. Co., 159 Va. 703, 167 S.E. 351, and Ashland v. Newman, 163 Va. 500, 175 S.E. 724, 176 S.E. 470.

'In contracts of which no memorial is made and no writing required by law, it is doubtless true that where parties have made a bargain which both of them understand in a certain sense, their intent (which at least has been made plain to one another) must be sought, however inadequately it may have been expressed.' 3 Williston on Contracts, Rev. Ed. sec. 610, p. 1752.

Ascertainment of the intent of the contracting parties is the cardinal rule in the construction of agreements. To do that the court will put itself in the situation...