Holden Engineering and Surveying, Inc. v. Pembroke Road Realty Trust, 92-486

• Decision Date: 07 July 1993
• Docket Number: No. 92-486,92-486
• Citation: 137 N.H. 393,628 A.2d 260
• Parties: HOLDEN ENGINEERING AND SURVEYING, INC. v. PEMBROKE ROAD REALTY TRUST and another.
• Court: New Hampshire Supreme Court

Page 260

628 A.2d 260

137 N.H. 393

HOLDEN ENGINEERING AND SURVEYING, INC. v. PEMBROKE ROAD REALTY TRUST and another.

No. 92-486.

Supreme Court of New Hampshire.

July 7, 1993.

Joseph F. McDowell, III, P.A., Manchester (Edward C. Dial, Jr., on the brief), on brief, for plaintiff.

Lauren S. Vallari, Concord, on brief, for defendants.

JOHNSON, Justice.

The plaintiff, Holden Engineering and Surveying, Inc., sued the defendants, Pembroke Road Realty Trust and Jerry McCarthy (individually and as trustee of Pembroke), for payment pursuant to a contract between the parties. The Concord District Court (Sullivan, J.) ruled in favor of the defendants, finding that the plaintiff had not performed a condition precedent to payment. The plaintiff appeals this decision, and we reverse.

In early August 1991, the defendants hired the plaintiff to help them subdivide a plot of land. The parties' contract specifies the " Objectives and Scope of Services" as follows: "Conduct boundary survey of 19 acre parcel, subdivide 1 acre abutting Cole lot. Prepare minor subdivision plan for submission to City of Concord. To present subdivision plan and procure Planning Board approval." Under the heading, "Budget Estimate," the contract states, "Work to be done at standard hourly rates. Lump sum figure $3,000.00." Immediately following the number, "$3,000.00," appear the handwritten words, "(Not to exceed)," and defendant Jerry McCarthy's initials. Paragraph eleven of the contract states, in pertinent part:

"Billing/Payments. Invoices for [the plaintiff's] services shall be submitted on a semi-monthly basis.... All such invoices shall be payable within fifteen (15) days after the date thereof and shall, in the event that payment is not duly made, bear interest at the rate of two percent (2%) a month from date of original billing.... It is further understood that if there be failure by [the defendants] to pay any invoice due to the [plaintiff] within fifteen (15) days after the date thereof, the [plaintiff] may ... terminate its performance hereunder. In the event that the [plaintiff] places any invoice which is unpaid after the due date in the hands of any agency or an attorney for collection, [the defendants] shall pay all costs and expenses of such collection, including reasonable attorney's fees and court costs."

At the end of this paragraph appear more handwritten words--"Based upon Percentage of Completion"--and, again, Jerry McCarthy's initials. Both parties agree that the handwritten words are binding amendments to the contract.

The plaintiff performed "a substantial amount of work" under the contract and obtained conditional approval from the Concord Planning Board for the defendants' proposed subdivision on September 18, 1991. The conditions placed on final approval stemmed from the discovery that the defendants' land contains a habitat for the Karner Blue butterfly, an endangered species. The conditions require "[t]he conveyance of a buffer easement to the New Hampshire Natural Heritage Inventory (NHNHI) for lot 19 for the area so noted on the subdivision plan ... [and] [t]he development of a management agreement between the owner of lot 12 for the Karner Blue Habitat on said lot." These two conditions apparently have not been met, and therefore, the defendants have yet to receive final board approval for their proposed subdivision.

The defendants have also yet to pay the plaintiff for any of the work performed under the contract, although the plaintiff sent them four invoices for services rendered. The invoices were dated August 9, 1991, August 23, 1991, September 6, 1991, and November 15, 1991, and listed, respectively, the following amounts due: $65, $3,010, $100, and $1,185.51. In response to the plaintiff's suit to recover these amounts, the defendants claimed that the parties' contract obligates the plaintiff to procure final board approval and makes such approval a condition precedent to any payment. The plaintiff disagreed, maintaining that it fully performed under the contract, and that the conditions imposed by the board for final approval were unforeseeable and beyond the scope of the plaintiff's expertise. Each party alleged that the other failed to cooperate in attempting to obtain final approval.

The district court held a hearing and admitted extrinsic evidence to interpret the contract. The court decided:

"While the testimony is clearly in conflict, I conclude that based upon my review of the testimony and documentary evidence the Plaintiff has not completed the contract as envisioned by the parties. Final sub-division approval has not been obtained and I conclude that the Plaintiff is not entitled to be paid under the contract as I interpret its terms and conditions."

This appeal followed.

Before this court, the plaintiff makes the same arguments it made below and asks that we enter judgment in its favor. The defendants also repeat their earlier contentions, arguing first that the contract provision regarding the plaintiff's obligation to procure board approval is ambiguous. Consequently, they contend, the district court properly admitted extrinsic evidence to determine whether such approval is a condition precedent to payment under the contract. See Erin Food Servs., Inc. v. 688 Props., 119 N.H. 232, 235, 401 A.2d 201, 203 (1979). Because the...