Kinzer v. Degler Corp., 302-81
| Decision Date | 01 March 1985 |
| Docket Number | No. 302-81,302-81 |
| Citation | 491 A.2d 1017,145 Vt. 410 |
| Parties | Richard A. and Caroline L. KINZER v. DEGLER CORPORATION and Dale Degler d/b/a Degler's Heating and Air Conditioning. |
| Court | Vermont Supreme Court |
Samuel C. FitzPatrick, Montpelier, for plaintiffs-appellants.
Valsangiacomo, Detora & McQuesten, P.C., Barre, for defendants-appellees.
Before ALLEN, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.
This is an appeal from a judgment notwithstanding the verdict (n.o.v.), entered by the Washington Superior Court following a jury verdict in favor of the plaintiffs on the defendant's counterclaim. The judgment n.o.v. is reversed and judgment for plaintiffs is entered on the counterclaim.
Richard and Caroline Kinzer, plaintiffs, contracted with the defendant, Dale Degler, in August, 1977, to have him do the heating and air conditioning work for the Kinzers' "Crystal Palace" project. The Crystal Palace was to be a restaurant and shop complex, housed in a restored building on the Mountain Road in Stowe.
In January, 1978, there was a dispute between Degler and Richard Kinzer concerning the fact that the heating system was not yet working. Kinzer informed Degler that no more payments would be forthcoming until certain progress had been made. Degler replied that unless payment continued to be made as the invoices were presented, he would cease any work. Degler did not do any further work on the project.
The Kinzers subsequently brought suit against Degler personally and Degler Corporation, which was formed by Dale Degler during the period when he was performing under the contract with the Kinzers, for breach of contract. Counterclaims were filed by Degler and his corporation alleging breach of contract. At the close of the Kinzers' case, the court granted a directed verdict for the defendants on the grounds that the Kinzers had failed to prove damages. At the close of the defendants' presentation of their counterclaims, the court directed a verdict in favor of the Kinzers as against the Degler Corporation. Degler's personal claim against the Kinzers was submitted to the jury, which rendered a general verdict in favor of the Kinzers. The court subsequently granted judgment n.o.v. in favor of Degler on an invoice in the amount of $3,457.85. The Kinzers now appeal from that judgment n.o.v.
Degler's counterclaim alleged that the Kinzers breached their contract by their refusal in January, 1978, to pay any further invoices. His damage claims consisted of an invoice submitted to the Kinzers, dated January 3, for work completed and materials delivered, in the amount of $3,457.85; an additional invoice, never submitted, for an additional amount of approximately $700.00; lost profits on the labor of Degler himself and his employees; lost profits on the equipment markup; and legal expenses. The Kinzers' defense was not only that they had not breached the contract, but also that the claimed equipment markups were excessive; that certain work done was not governed by the contract at all; that the recordkeeping of hours worked was insufficient to...
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