Jackson v. Rogers

• Decision Date: 03 September 1957
• Docket Number: 1288,Nos. 1287,s. 1287
• Citation: 134 A.2d 620,120 Vt. 138
• Court: Vermont Supreme Court
• Parties: Alexander JACKSON and Julia C. Jackson v. William H. ROGERS and William H. Rogers, Jr., d/b/a William H. Rogers & Son.

Page 620

134 A.2d 620

120 Vt. 138

Alexander JACKSON and Julia C. Jackson v. William H. ROGERS and William H. Rogers, Jr., d/b/a William H. Rogers & Son.

Nos. 1287, 1288.

Supreme Court of Vermont.

Sept. 3, 1957.

R. Lawlor Cooper, Springfield, for plaintiff.

Parker & Ainsworth, Springfield, for defendant.

Before CLEARY, ADAMS, HULBURD, and HOLDEN, JJ., and SHANGRAW, Superior judge.

CLEARY, Justice.

This litigation consists of two contract actions, one brought by the Jacksons against Rogers & Son and the other brought by Rogers & Son against the Jacksons. Both suits are based on a written contract for the construction of a house, Plff's Exhibits 1 and 2. The Jacksons sued for failure of Rogers & Son to build the house according to the specifications and in conformity to usual building standards; Rogers & Son sued for the unpaid balance of $500 on the contract price. The suits were tried together by jury, resulting in a verdict of $950 for the Jacksons in their suit and in a defendant's verdict in the suit brought by Rogers & Son. Judgments were entered for the Jacksons in both suits. The cases are here on Rogers & Son's exceptions.

Rogers & Son had built a large number of houses which were financed by the Federal Housing Administration and were familiar with FHA requirements. Though the FHA did not finance the Jacksons' home, Rogers & Son drew the contract and specifications and, in doing so, used the same forms that were used for FHA financed contracts and specifications. The specifications stated that they included 'the applicable FHA Minimum Construction Requirements' and also stated 'unless otherwise described or shown, required work will be assumed to be the minimum acceptable to FHA.'

Rogers & Son have briefed exceptions to admitting into evidence two portions of the FHA Minimum Property Requirements identified as 406-D3.b and 406-G2.a. These requirements provide as follows: '406-D3 Footing Drain Tile. b. Protect top of joints with strips of building paper or other material acceptable to the Chief Underwriter and cover with 1 foot of gravel or other material acceptable to the Chief Underwriter.' '406G Dampproofing and Waterproofing. 2.a. Masonry unit walls: apply 1/2-inch thick portland cement plaster coat over which apply at least one heavy coat of undiluted hot tar, hot asphalt or compound acceptable to Chief Underwriter.'

Rogers & Son take the position that the terms of the contract as entered into by the parties, being specific as to footing drains and waterproofing, prevail over the terms of the FHA Minimum Property Requirements set forth in the admitted evidence. They cite and quote from Allen v. Berkshire Mutual Fire Ins. Co., 105 Vt. 471, 477, 168 A. 698, 700, 89 A.L.R. 460, 'It is a rule of construction that when words of a particular description are followed by words of general import, the latter can be held to include only things similar in character to those specially named.' But that rule is subject to the qualifications that where both the general and special provisions may be given reasonable effect, both are to be retained. 17 C.J.S. Contracts § 313, p. 732, note 26; Commonwealth ex rel. Raker v. Kline, 294 Pa. 562, 144 A. 750 751; German Fire Ins. Co. v. Roost, 55 Ohio St. 581, 45 N.E. 1097, 36 L.R.A. 236, 60 Am.St.Rep. 711, 714. No provision is to be wholly disregarded because inconsistent with other provisions unless no other reasonable construction is possible; and a special provision will be held to override a general provision only where the two cannot stand together. German Fire Ins. Co. v. Roost, supra. Here, the FHA Minimum Construction Requirements were included in the specifications and were part of the contract. A contract must be construed, if possible, so as to give effect to every part, and from the parts to form a harmonious whole. In re Pirie's Estate, 116 Vt. 159, 164-165, 71 A.2d 245; Freeguard v. Bingham, 108 Vt. 404, 406, 187 A. 801; Vermont Shade Roller Co. v. Burlington Traction Co., 102 Vt. 489, 502, 150 A. 138.

The only specific mention of footing drains in the contract is '4' perf. orangeburg.' The Jacksons found no fault with the footing drain or with the kind of material covering it; their complaint concerned the way in which the drain was installed and the lack of 1 foot of cover over it. Their evidence tended to support their complaint. There is no mention of dampproofing in the contract. As to waterproofing the contract says '1 coat Han-a-dex; 5 gal/sq'. The evidence was undisputed that such a coat was applied but that no cost of 1/2 inch portland cement plaster coat was applied. The Jacksons made no complaint about the overcoat of Han-a-dex; their complaint was the failure of Rogers to apply the Han-a-dex over a 1/2 inch thick coat of portland cement. The standard of the material used for the overcoat in the construction of the drain and of the material used for the overcoat in the masonry unit wall were not in issue. The specifications mentioned the material to be used for footing drains and for waterproofing; the FHA Minimum Requirements, to the admission of which exceptions are briefed, provide how the footing drains were to be covered and that Dampproofing and Waterproofing of the foundation walls should be by applying to the walls two coats, one of portland cement plaster and then an overcoat of other material. The provisions in the specifications and in the portions of the FHA requirements that were admitted into evidence were not inconsistent with each other but each supplemented the other. It was possible to give both of them reasonable effect, so the rule that Rogers & Son quote from the Allen-Berkshire case does not apply to the case now before us.

Rogers & Son also claim that the admitted evidence interjects another standard, namely 'other material acceptable to the Chief Underwriter', and this constituted prejudicial error because there is no Chief Underwriter on this construction job. It appeared in evidence that the term 'Chief Underwriter' meant FHA, that FHA had no connection or interest in the contract before us so there was no Chief Underwriter.

Rogers & Son first objected to the admission of 406-D3.b and 406-G2.a on the ground that the specifications in Plff's Exhibit 2 were controlling. The court indicated it would admit 406-D3.b and 406-G2.a as evidence in all matters except the phrase 'acceptable to the Chief Underwriter'. Rogers & Son objected to the exclusion of this phrase and stated: 'If there are any minimum requirements in the publication, they must be either received in toto or excluded and, where these particular sections provide, if you will, a sliding standard predicated on the judgment of the Chief Underwriter, the whole purpose and meaning of such minimum requirements have been emasculated, in that there remains only a portion of the requirements, which would set up a standard not provided for by the written document, since the written document leaves a large area in which the Chief Underwriter may approve some particular type of construction.' The court then stated: 'The court is perfectly willing to leave that provision remain in the admitted exhibits, for whatever benefit the defendants might be entitled to from it. We have no intention of foreclosing from the defendants any right to show acceptable substitutions were contemplated in the contract, so we will modify our ruling to that extent.' Rogers' counsel then said: 'The defendants except to the most recent ruling of the court; namely, to admit those paragraphs in their printed form, by reason of the fact the paragraphs in the printed document set up a standard to be determined by the Chief Underwriter and there is no way of determining, at the present state of the case, what the Chief Underwriter's standard would be, and to attempt to hold the defendants to an elastic standard dependent on someone's judgment, who is not here in court, we say our rights are greatly prejudiced and we would like exception to the ruling'. The court allowed such exception. Rogers & Son cannot complain that the phrase 'acceptable to the Chief Underwriter' was admitted into evidence because this was done at the insistence of their own counsel. 406-G2.a of the FHA Minimum Property Requirements were properly admitted in evidence and the exceptions to the admission of this evidence are not sustained.

In their declaration the Jacksons alleged: 'The said defendants did not construct the said house in a good and workmanlike manner, in conformity with the specifications in said writing, nor in conformity with the usual building standards in this vicinity, in that the defendants, in building such house did not: 1. Provide a solid, continuous cap or plate along the easterly side of said house; 2. Provide a solid, continuous unnotched shoe along the easterly side of said house; 3. Provide proper vertical studding and horizontal nailing members in the building framing between the cap or plate and the gable rafters at the easterly end of said building; 4. Provide a poured concrete footing below the normal frost line for the foundation walls; 5. Provide a solid foundation wall free from transverse cracks; 6. Provide a proper backfill of gravel around the foundation wall; 7. Provide a waterproof basement; 8. Properly mortar the joints between the cement blocks which form the foundation walls; 9. Provide proper drainage fill around the tile drain at the edge of the foundation footings; 10. Provide a proper base for the entrance platform, or step, at the rear door of said building; 11. Install properly the flooring in the rooms of said house.' Rogers & Son have briefed their exceptions to submitting to the jury the allegations numbered 1, 2, 3, 4, 6, 7 and 9 in the Jackson's declaration.

The court's charge to the jury included the following: 'Where no standard is spelled out in a building contract such as this as to the standard of workmanship to be applied to the construction...