London v. TROITINO BROTHERS, INCORPORATED

• Decision Date: 21 March 1962
• Docket Number: No. 8384.,8384.
• Parties: H. W. LONDON and Nina E. London, t/a London Construction Company, Appellees, v. TROITINO BROTHERS, INCORPORATED, Joe Troitino and Tom Troitino, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

301 F.2d 116 (1962)

H. W. LONDON and Nina E. London, t/a London Construction Company, Appellees, v. TROITINO BROTHERS, INCORPORATED, Joe Troitino and Tom Troitino, Appellants.

No. 8384.

United States Court of Appeals Fourth Circuit.

Argued October 17, 1961.

Decided March 21, 1962.

C. B. Andrews and J. Livingston Dillow, Pearisburg, Va. (Dillow & Andrews, Pearisburg, Va., on the brief), for appellants.

Bentley Hite, Christiansburg, Va., for appellees.

Before BOREMAN, BRYAN and BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

The plaintiffs, H. W. London and Nina E. London, trading as London Construction Company, brought this action in the District Court for the Western District of Virginia against the corporate defendant, Troitino Brothers, Incorporated, and the individual defendants, Joe and Tom Troitino. They alleged that they had entered into a written contract on December 17, 1956, to grade, excavate and move earth and rocks on the Blue Ridge Parkway in Amherst County, Virginia, as subcontractors for the defendants. They further alleged that while they were in the process of performing the written contract, they had entered into oral agreements with the defendants to do additional work of a somewhat similar nature at specified unit prices. They also alleged that the work had been properly performed but that the defendants failed and refused to pay therefor in accordance with the several agreements between the parties. The corporate defendant answered denying that any agreements had been entered into other than the specified written contract. The individual defendants answered denying any contract had been entered into between them and the plaintiffs under which work was performed by the plaintiffs. In the course of the trial below the individual defendants were dismissed from the case. No objection was taken from this action.

Although the corporate defendant Troitino Brothers, Incorporated, indicated its intention to demand jury trial in its Answer, this right was subsequently waived by counsel by moving the Court that the cause be referred to a Special Master to find the facts and to draw conclusions of law therefrom on all the issues raised by the pleadings. In this counsel for the plaintiffs concurred and the District Court ordered the matter referred to one Leroy Moran as Special Master to find the facts and the law and to report his findings to the Court. The Special Master held three separate hearings during which over five hundred pages of testimony were taken and transcribed. His findings of fact and conclusions of law were subsequently reported to the District Court. To this report counsel for both the plaintiffs and the defendant filed numerous exceptions and lengthy briefs. After hearing the parties, the District Court entered an order confirming the report of the Special Master in all but one relatively insignificant item and entering judgment thereon for the plaintiffs in the sum of $2,798.06 with costs.

From this judgment the defendant appeals, raising only questions of fact concerning two items found in the Master's report.

Contrary to the contention of counsel for both sides, neither the District Court nor this Court is bound by the Virginia law with respect to the weight to be given to the findings of fact by the Master. The District Court is controlled by the provisions of Rule 53(e) (II) which provides that that court shall accept the Master's findings of fact unless clearly erroneous. Esdale v. Edwards, 28 F.R.D. 390 (D.C.W.D.N.C. 1961). We are bound by the provisions of Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., wherein it is provided that in all actions tried upon the facts without a jury, this Court shall not set aside the findings of the District Court unless clearly erroneous. The findings of a Master, to the extent that the Court adopts them, shall be considered to be the findings of the Court below. Carpenter v. Union Insurance Society of Canton, Ltd., 284 F.2d 155 (4 Cir. 1960).

While the evidence before the Master was conflicting on many aspects of the case, a careful reading of the full record does not leave us with the feeling that his findings were clearly erroneous. From the record it appears that the defendant Troitino Brothers, Incorporated, as prime contractor entered into a contract with the Bureau of Public Roads to construct a concrete bridge on stone masonry superstructure and a concrete and stone masonry dam on the Blue Ridge Parkway in Virginia. The work included excavating for a small lake behind the dam. Troitino subcontracted to the plaintiffs in the written agreement of December 17, 1956, certain aspects of the work listed in both the prime contract and the...