Lambert v. Jenkins

• Citation: 71 S.E. 718,112 Va. 376
• Parties: LAMBERT. v. JENKINS.
• Decision Date: 08 June 1911
• Court: Supreme Court of Virginia

112 Va. 376

71 S.E. 718

LAMBERT.

v.JENKINS.

Supreme Court of Appeals of Virginia.

June 8, 1911.

1. Courts (§ 91^*)—Former Decision—Stare Decisis.

Where, in a prior action between plaintiff, an owner, and a subcontractor, it was material that the court should construe the written contract for the construction of a building between plaintiff and the present defendant, and it was there held, on appeal by the Supreme Court that defendant was an independent original contractor, and not plaintiff's agent in the employment of the subcontractor, and that plaintiff could not, therefore, recover against such subcontractor, the court, in the subsequent action by plaintiff against defendant in construing the same contract, properly held that defendant was an independent contractor, and that the subcontractor was defendant's agent, though defendant was no party to the prior suit.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 325, 326; Dec. Dig. § 91.*]

2. Contracts (§ 198*)—Original Contractor —Materials—Guaranty—Instructions.

Where a contractor for a building guaranteed that the workmanship should be first-class and satisfactory in every respect, and plaintiff sued for damages caused by the failure of a subcontractor to provide proper materials for the construction of a granolithic floor, a request to charge that defendant contractor was not a guarantor that the floor would be perfect, but only agreed to use his best knowledge, skill, judgment, and energy in the business, and if he did that, and kept all the other parts of the contract with reference to workmanship, the jury should find for him, was properly refused, as contrary to the terms of the contract.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 861-883; Dec. Dig. § 198.*]

3. Contracts (§ 198*)—Building Contracts —Guaranty of Workmanship—Materials —"Workmanship."

Where a contractor for the construction of a building guaranteed that the workmanship should be first-class and satisfactory in every respect, the term "workmanship, " as used in such guaranty, was sufficient to protect the owner against the use of bad or unsuitable materials by a subcontractor.

[Ed. Note.—For other cases, see Contracts. Cent. Dig. || 861-S83; Dec. Dig. § 198.*]

4. Damages (§ 123*)—Breach of Contract-Measure.

Where a contractor for the construction of a building guaranteed that the workmanship should be first-class, and a granolithic floor put in by a subcontractor was soft and defective, the court properly charged that the owner's measure of damages was such a sum as it would reasonably take to make the floor conform to the contract.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 320-325; Dec. Dig. § 123.*]

5. Trial (§ 252*)—Instructions—Evidence.

In an action against a contractor for damages because of a defective granolithic floor in a building constructed by a subcontractor, defendant was not entitled to an instruction as to his right to set off the value of other work done by such contractor, where there was no offer of evidence at the trial as to the cost or value of such work: and this, notwithstanding the jury saw the same, and by taking measurements could have placed a valuation thereon.

[Ed. Note.—For other cases, see Trial, Dec. Dig. § 252.*]

6. Principal and Agent (§ 182*)—Notice to Agent—Evidence—Statements Made to Agent.

In an action against a contractor for damages resulting from a defective floor in a building constructed by a subcontractor, the latter being the agent of the contractor, the owner was entitled to testify that he pomplained to such subcontractor, and told him that the floor could not be used, that it was soft, and did not seem right.

[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 182.*]

7. Appeal and Error (§ 1051^2-*)—Evidence-Prejudice.

Where, in an action for damages caused by the defective construction of the floor in a building, the jury were permitted to view the premises, defendant was not prejudiced by the introduction of photographs thereof.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. § 1051.*]

Error to Law and Equity Court of City of Richmond.

Action by L. H. Jenkins against George W. Lambert. Judgment for plaintiff, and defendant brings error. Affirmed.

W. L. Royall, for plaintiff in error.

Garnett & Pollard, for defendant in error.

CARDWELL, J. This case and that of Veitch v. Jenkins, 107 Va. 68, 57 S. E. 574, arose out of a contract entered into between plaintiff in error, G. W. Lambert, and defendant in error, L. H. Jenkins, which was construed in the first-named case.

The essential features of the contract are set out in Veitch v. Jenkins, supra, as follows:

" * * * L. H. Jenkins entered into a written agreement with * * * George W. Lambert, by which the latter engaged to purchase material, employ labor, and superintend and erect for the former a building in the city of Richmond for a book factory, in accordance with certain plans in hand, to use his best efforts to secure materials and labor at the lowest cost, and to render his employér a true account thereof. The estimated cost of the building was $12,110, which amount was not to be exceeded without the consent of the owner, and Lambert guaranteed that the workmanship should be first-class and satisfactory in every respect, while Jenkins agreed to pay the net cost of material and labor, together with a commission of $1,300 to Lambert.

"The plans called for a granolithic floor in one of the rooms of the building, and the contractor (Lambert) employéd Veitch to supply the material and lay the floor."

The controlling question in Veitch v. Jenkins, supra, was whether or not Lambert was an independent contractor, or merely an agent of Jenkins, and it was held that he was an independent contractor—the result of the decision being that Jenkins could not recover of Veitch the cost and expense incurred by Jenkins in consequence of Veitch's failure to supply suitable material and lay the granolithic floor as called for in Lambert's contract with Jenkins; that Veitch was the employé of Lambert, and not of Jenkins, and, therefore, was not answerable to the latter in damages for defective work. After that decision, Jenkins brought this suit against Lambert, and recovered the judgment herein complained of, for $1,032.38, as the amount expended by Jenkins, made nec essary by reason of the granolithic floor in question being so defective that it could not be used, and therefore did not conform to the requirements of the contract between the parties.

The giving of instructions Nos. 1 and 2, offered by defendant in error, plaintiff below, is assigned as error, and the only reasons given for objection thereto are: (1) "Telling the jury that Lambert was an independent contractor"; and (2) "telling the jury that Veitch was Lambert's agent."

It is very true that plaintiff in error was not a party to the record in Veitch v. Jenkins, supra; but the contract construed in that case is the same contract to be construed in this, and as the contract was in writing and unambiguous in its terms, the opinion in the first case said that it was the province of the court to construe the instrument, and as a matter of law to determine the relation between the parties thereto, and then followed the language construing the contract quoted above. Not only was it there decided that plaintiff in error here stood in the relation to defendant in error of an independent contractor, but that there was no privity between the latter and the former's "employé, Veitch, " and therefore it was held that Veitch was plaintiff in error's agent in the matter of supplying the necessary material and putting down the granolithic floor called for in the contract. The contract being the same, and the evidence in the two cases practically the same, the rule that, "where the contract is in writing and unambiguous in its terms, it is the province of the court to construe the instrument and as a matter of law to determine the relation between the parties, " applies as well here, and parol evidence intended to alter or vary the terms of the contract cannot be considered.

The case of Lambert v. Phillips, 109 Va. 632, 64 S. E. 945, relied on for the plaintiff in error, has no controlling influence in this case, for the all-sufficient reason that in that case the contract was oral, not written, and the sole question involved was to whom credit was given, a question for determination by the jury under proper instructions from the court.

The assignments of error with respect to the giving of defendant in error's instructions Nos. 1 and 2 are without merit.

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