May v. Martin
| Decision Date | 11 September 1964 |
| Docket Number | No. 5763,5763 |
| Citation | 205 Va. 397,137 S.E.2d 860 |
| Parties | W. T. MAY, INDIVIDUALLY AND TRADING AS MAY CONSTRUCTION COMPANY v. WESLEY W. MARTIN. Record |
| Court | Virginia Supreme Court |
J. Murrell Daniel, for the plaintiff in error.
Joseph L. Lyle, Jr. (Hickson, Davies & Lyle, on brief), for the defendant in error.
Wesley W. Martin instituted this proceeding on March 8, 1963, by filing a motion for judgment against W. T. May, individually and trading as May Construction Company, alleging that May was indebted to him in the sum of $3,137.00, balance due under two contracts for the construction of two houses for the defendant. On March 15, 1963, May filed a 'Response and Counter-claim,' in which he denied that he was indebted to Martin in the sum claimed in the motion for judgment, in that Martin had not performed his contracts within the time provided therein. In the counter-claim, he further alleged that Martin was indebted to him in the sum of $2,030.31, representing $1,466.40, interest he, May, had to pay on money borrowed to pay for the houses and their construction, because of delay in the performance of the contracts; and $563.91, paid to subcontractors of Martin, who would not extend credit to the latter. He asked that the $2,030.31 'be borrowed as a set-off against the claim of' Martin.
No response was made by Martin to these pleadings.
The case came on to be heard on May 22, 1963, and on that day May paid into court, pursuant to Code of Virginia, 1950, § 8-237, the sum of $1,106.69, the difference between the claim of Martin and the counter-claim of May.
May, on the same day, filed a motion for a summary judgment on the counter-claim, on the ground that Martin having failed to file a response thereto, judgment thereon should be taken for confessed. The motion was denied, and May duly excepted.
Martin, by leave of court, then filed a response in which he denied the allegations of delay mentioned in the counter-claim, and that the sum paid into court discharged May's indebtedness to him.
The evidence was heard before a jury. Martin conceded that May was entitled to a credit of $563.91 paid by the latter to creditors of Martin. The sole issue was whether May was entitled to credit for $1,466.40, interest paid out by him. Motions to strike, made at the conclusion of plaintiff's evidence and at the conclusion of all the evidence, were overruled. The jury returned a verdict in favor of Martin for the sum of $1,466.40. May moved to set it aside as contrary to the law and the evidence, and because of the admission of improper evidence and misdirection of the jury. The motion was overruled and judgment entered in accordance with the verdict. We granted May this writ of error.
The principal questions are these: Did the court err (1) in refusing to grant May's motion for summary judgment on his counter-claim; (2) in refusing to strike the evidence or to set aside the verdict; (3) in permitting certain witnesses to testify as to their dealings with May; and (4) in giving instructions numbered 4 and 5.
The facts have been stipulated in detail for the purpose of this appeal. Those that are material may be summarized as follows:
In February, 1961, G. S. Medieros, an employee of Lester Brothers, Inc., a manufacturer of 'pre-cut' Lesco Homes, met May and agreed to sell to him two houses. One was to cost $6,049.00 and the other $6,400.00. Medieros told May that he would secure a contractor to erect the houses on lots owned by May, and that Lester Brothers would arrange interim financing for the costs of the 'Package Homes' and the expense of erecting them. At that time, Medieros also told May that the houses 'would be constructed within four months from the date construction began.'
Martin had a written agreement with Lester Brothers granting him the privilege of selling or building its homes in a certain described area. It expressly provided that Martin was not to be considered as an agent or employee of Lester Brothers; but that he was, and remained, an independent contractor. May and Martin had never had any business dealings with each other and were strangers.
On April 1, 1961, May, Martin, and Medieros, the agent of Lester Brothers, met on the lots owned by May, upon which the two houses sold by Lester Brothers, were proposed to be erected. May and Martin signed two contracts, wherein Martin agreed to erect the houses, one for $5,346.00 and the other for $5,265.00, furnishing all necessary tools, equipment, labor, and certain other specified materials. Payments were to be made therefor, 'one-third upon each final inspection report, marked clear, with a balance being due and payable five days after receipt of the final inspection.' No time limit for completion of the construction was contained in either contract.
After the execution of the above contracts, May made an interim financing agreement with Lester Brothers, whereby he was to obtain necessary funds for the purchase of the houses and for the payment of the construction work to be performed by Martin. The financing agreement was set up on a four-months plan with a provision that if there was an extension of the loan beyond four months, May would pay interest on the money borrowed at the rate of 6% per annum. The two houses were finished about November 15, 1962, and accepted as complete by May. However, as a result of approximately fifteen and one-half months of delay in their completion, May was required to pay interest amounting to $1,466.40 on money borrowed by him. The amount is not in dispute.
Martin said that no oral agreement was made as to the time of completion of the houses; that he commenced erecting them shortly after April 1, 1961; that there was some delay in receiving materials and some caused by rain, but that he completed two-thirds of the work on both houses by mid-June of 1961; and that he had been paid but two installments by May, according to the terms of the contracts, amounting to $7,474.00. He further said that he erected other Lester Homes and he knew that interim financing arrangements therefor were customarily based on the completion of the houses in a four-months period.
He further said that the reason he did not complete the houses sooner was because Lester Brothers kept calling him to work on other jobs. Every time Lester Brothers called him to other work he told May, and 'May would merely ask him to get to the work when he could.' He found out that if he carried out his contract with May according to its terms, he would lose money on the job; that he then told May to get another contractor to finish the work, and that he would give him a promissory note to cover any extra expenses incurred; and that at no time during the course of the construction of the house did May tell him that he, May, was going to hold him liable for any expenses incurred by reason of delay. Martin admitted that he had requested May to pay certain sums directly to subcontractors because otherwise he, Martin, could not obtain credit from them.
Medieros, who was present when the contracts were signed, said there was no mention at that time as to the period within which the houses would be completed.
C. B. Mills, Jr., a subcontractor of Martin's, testified over the objection of May, that he completed his portion of the work on November 15, 1962; that he got in touch with May, who advised him to send his bills to him and he would pay them; and that May never mentioned to him any claim of damages as a set-off against Martin's contract price.
Several other subcontractors testified, over the objection of May, that they had several conversations with May regarding the completion of and payment for the two houses; but that May never told them he was claiming any set-off against Martin or that the latter would be entitled to receive any less sum than the contract price.
May testified that Medieros 'arranged the entire transaction and introduced him to Martin as a builder-dealer of Lester Brothers,' and that Medieros told him that 'the houses were to be completed not later than August 1, 1961.' May also said that it was further understood and agreed in his discussion of the contracts with Medieros, Martin being present, that 'Lester Brothers would advertise, promote, show and help sell the two houses in the first part of July, 1961; and that the houses would be completed at the time of such showing.'
On cross-examination, May said that the reason he did not accept Martin's suggestion that he employ another contractor to complete the houses was because he 'hired two contractors to look at the job and their prices for completing the contracts would have been far in excess of the original total price agreed to by him and Martin;' and that he repeatedly told Martin that he would hold him personally responsible for any damages caused by the latter's failure to complete the erection of the houses by August 1, 1961.
May said he knew that the subcontractors would not extend credit to Martin and that was the reason he paid them the sums mentioned in his cross-claim. Upon questioning by the court, he said 'that the purpose for his counter-claim was not to obtain a judgment against the plaintiff, [Martin] but only to set off the amount claimed against the amount claimed by the plaintiff, in the motion for judgment.'
Medieros and two other witnesses, all employees of Lester Brothers, testified that the houses contracted to be built by Martin should have been completed in 120, 90, or 45 to 90 days, assuming that the contracting builder would devote his full working time to the job.
The stipulation further recites that the court, upon refusing to grant May's motion for a summary...
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