Mann v. Clowser, 3625

• Decision Date: 01 May 1950
• Docket Number: No. 3625,3625
• Citation: 190 Va. 887,59 S.E.2d 78
• Parties: GEORGE M. MANN v. VIRGINIA B. CLOWSER AND JOHN A. CLOWSER. Record
• Court: Virginia Supreme Court

Page 78

59 S.E.2d 78

190 Va. 887

GEORGE M. MANN v. VIRGINIA B. CLOWSER AND JOHN A. CLOWSER.

Record No. 3625.

Supreme Court of Appeals of Virginia

May 1, 1950.

A. Garland Williams and J. Edward Thoma, for the appellant.

Wilbur F. Trout and Frank S. Tavenner, Jr., for the appellees.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

In the summer of 1947 L. N. Ritter, an architect, prepared for Virginia B. Clowser and John A. Clowser, her husband, plans and specifications for the construction of a building on a lot owned by Mrs. Clowser in Clarke county. The blueprints showed that the first floor of the building was to be used as a restaurant and dance hall with living quarters over the restaurant.

After obtaining from several other contractors estimates for the construction of the building, at prices ranging from $16,000 to $29,000, the Clowsers interviewed the appellant, George M. Mann, a local contractor, about the middle of July, 1947, with respect to undertaking the work. Upon studying the plans and specifications Mann entered into a verbal contract with the Clowsers to construct the building.

The testimony of the respective parties is in conflict as to the terms of this contract. The Clowsers say that Mann advised them that the building could be constructed according to the blueprints, but without reference to the detailed specifications, at a cost ranging from $10,000 to $11,000, and that it probably could be constructed at a lesser figure if 'cheaper' materials were used. They further say that Mann made them a 'firm offer' to construct the building on these terms, that they accepted it, and that the work was undertaken on this basis.

Mann, on the other hand, testified that he agreed with the Clowsers to construct the building on a 'cost plus basis' -- that is, he was to furnish the labor and materials and was to receive as his compensation 10% of the cost thereof.

The work was started in August, 1947, and was substantially completed about the middle of the following April. In the meantime the Clowsers made several payments to Mann as the work progressed, the last of these being in January, 1948.

On May 4, 1948, Mann filed a mechanic's lien on the building and the tract of land on which it was located to secure the sum of $9,613.39, which he claimed was the balance due him on the contract. On July 3, Mann, in order to enforce his claim, filed a petition in an equity suit which had been instituted for the purpose of enforcing another mechanic's lien on the property.

Although process was issued on both the original bill and Mann's intervening petition, and was served on the Clowsers, they made no appearance and filed no answer in the cause. On August 9, 1948, a pro confesso decree was entered, in which among other things it was ordered and decreed that Mann recover of Virginia B. Clowser, in whose name the title to the real estate stood, the sum of $9,613.39, with interest from May 1, 1948. By the terms of the same decree the cause was referred to a master commissioner who was directed to ascertain and report the liens and the order of their priority on the land and building.

Shortly thereafter the master commissioner filed his report, to which no exceptions were taken, and on September 21, 1948, a decree was entered confirming this report and ordering the property to be sold to satisfy the liens thereon.

On October 12, 1948, the Clowsers, by leave of court, filed their petition in the cause, alleging that since the entry of the decrees of August 9 and September 21 they had discovered that there were serious defects in the construction of the building, due both to poor workmanship and the use of improper materials, and that such defects could not have been discovered by the exercise of due diligence prior to the entry of the decrees. They prayed that the decrees be reheard and annulled, and that they be permitted to offset against any sum due by them to Mann their provable damages occasioned by his faulty construction work. There was a further prayer that a sale of the property be postponed.

The petition for a rehearing was supported by affidavits of the architect who had prepared the plans, one of a contractor, and those of the Clowsers.

In accordance with the prayer of the petition the sale of the property was postponed pending the outcome of the controversy which had thus arisen. The petition was later amended and supported by a bill of particulars.

Mann moved to strike this petition on the grounds, among others, that the decree of August 9, 1948, by the terms of which he had been given a judgment against Mrs. Clowser for $9,613.39, with interest, was a final decree and not subject to be reviewed or reheard; that the petition of the Clowsers was in effect an answer to his petition and was filed too late; and that, in any event, the allegations in the petition did not measure up to the requirements for a rehearing on the ground of after-discovered evidence.

While Mann answered, denying the allegations of the Clowsers' petition, he filed no supporting affidavits controverting their right to a rehearing.

On May 6, 1949, the lower court entered a decree holding that the decrees of August 9 and September 21, 1948, were not final but interlocutory and were subject to review; that except as to the judgment of $9,613.39 which had been decreed in favor of Mann against Mrs. Clowser, the amended petition of the Clowsers and the affidavits filed therewith disclosed that they had 'a valid defense' to Mann's claim which was 'new and could not have been discovered by the exercise of due diligence prior to August 9, 1948;' and that such defense was 'material' and if interposed might have produced a different result in the former hearing of the cause. Accordingly, except as to the personal judgment, the decrees were set aside.

It was further decreed that because of the obvious conflict in the evidence an issue out of chancery should be and was directed to be made up and tried to ascertain (1) whether there was a breach of contract by the contractor, Mann, and (2) if so, the amount of damages, if any, sustained by the Clowsers as the result thereof.

In accordance with this decree a jury was impaneled and upon the evidence adduced they brought in a verdict, deciding on the first issue that Mann was 'guilty of breach of contract,' and on the second that the Clowsers were entitled to recover of him damages in the sum of $7,500. The verdict specified that $5,000 damages had resulted 'from improperly constructed footings' in the foundation, and $2,500 in damages for 'deviation from the contract as to the materials used.'

Mann's motion to set aside the verdict was overruled and a decree was entered directing that the Clowsers recover of him $7,500, with interest from May 13, 1949, that being the date of the verdict, and that this sum 'be set off against the said judgment of $9,613.39, with interest,' which previously had been entered in favor of Mann against Virginia B. Clowser. From that decree the present appeal has been taken.

The petition filed on behalf of the Clowsers was not, as Mann contends, a bill of review. It was a petition for a rehearing and was so treated and considered by the court in the decree granting the rehearing.

These two types of pleadings are thus clearly distinguished in Lile's Equity Pleading and Practice, 2d Ed., pp. 97, 98:

'Sec. 195. Petition to rehear. The purpose of a petition to rehear is much the same as that of the bill of review -- namely, to have the trial court rehear the cause in the particulars set out by the party complaining of error, and to correct the errors alleged.

'Sec. 196. The same -- contrasted with bill of review. While the purpose of these two pleadings is substantially similar, there is wide variance in the scope of the two and in the circumstances under which they may be filed respectively.

'We have just seen that the bill of review lies only after a final decree, and only for the correction of errors of law apparent on the face of the record, or to introduce newly discovered and material evidence, and must be filed within one year from the date of the final decree.

'On the other hand, a petition to rehear is the appropriate method of bringing errors to the attention of the trial court (1) before final decree; (2) whether the errors be of law or of fact; or (3) for the introduction of newly discovered evidence; nor, in Virginia, (4) is there any statutory limitation applicable to such petitions.

* * *

'Sec. 197. The same -- Interlocutory decrees in the breast of the court.

'Being * * * in the breast of the court, such decrees do not constitute final records; and hence they are subject to alteration and amendment, in the sound discretion of the court, at any future term and until adjournment after entry of the final decree. Hence, where considerations of justice require it, there is not the same reason for judicial reluctance to grant relief under a petition to rehear as in the case of the bill of review.'

See also, Royall v. Peters, 180 Va. 178, 187, 21 S.E. (2d) 782, 786, and cases there cited.

Clearly, we think, the trial court was right in holding that the decrees of August 9 and September 21, 1948, were interlocutory and not final decrees.

Mr. Minor's frequently quoted definition of a final decree is one 'which disposes of the whole subject, gives all the relief that was contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause, save to superintend ministerially the execution of the decree.' 4 Minor's Institutes, 1878 Ed., p. 860. See also, Richardson v. Gardner, 128 Va. 676, 682, 105 S.E. 225.

The following criterion of an interlocutory decree, laid down by Judge Baldwin in Cocke v. Gilpin, 1 Rob. (40 Va.) 20 [22, 30], has been approved in many cases: 'Where the further action of the court in the cause is necessary to give completely...