Morrison v. Bitting

• Decision Date: 14 April 1938
• Docket Number: No. 7897.,7897.
• Citation: 198 A. 355
• Parties: MORRISON v. BITTING.
• Court: Rhode Island Supreme Court

198 A. 355

MORRISON

v. BITTING.

No. 7897.

Supreme Court of Rhode Island.

April 14, 1938.

Exceptions from Superior Court, Washington County; Alberic A. Archambault, Judge.

Assumpsit by Thomas H. Morrison against Clarence R. Bitting for labor performed and materials furnished. Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled, and case remitted for entry of judgment.

William S. Flynn, of Providence, for plaintiff. John Ferguson, of Westerly, and Henry M. Boss, of Providence, for defendant.

BAKER, Justice.

This is an action of assumpsit in which, after a trial in the superior court, a jury returned a verdict for the plaintiff for $5,404.98. The defendant's motion for a new trial was denied by the trial justice, and the defendant then prosecuted his bill of exceptions to this court.

The defendant is now relying on fifteen exceptions; having waived the others taken by him. The exceptions now urged relate to certain rulings made by the trial justice during the trial, to his refusal to charge the jury as requested by the defendant, and to the denial of the latter's motion for a new trial.

This case was brought by the plaintiff to recover a balance which he claimed was due him from the defendant by reason of certain work and labor performed and materials furnished by the plaintiff for the defendant on the latter's property in the town of Westerly, in pursuance of an agreement made by them.

The defendant does not dispute the making of such agreement concerning the work in question, neither does he question the quality of the plaintiff's work or that some money is due the latter. The defendant, however, does contend that he has been overcharged and improperly charged by the plaintiff in certain respects, and that he is not entitled to the full amount claimed. The plaintiff, on the contrary, maintains that he performed his part of the agreement in question, and that the charges made by him against the defendant were reasonable and proper.

The record in the case is voluminous, and it is not necessary to refer to it in detail. From the evidence it appears that the plaintiff, who was a general contractor located in Westerly, had done work for the defendant over a period of several years prior to the incident leading up to the present action. As a matter of fact, the plaintiff had, to the apparent satisfaction of the defendant, constructed a residence, built roads, and done landscaping and other work on a large estate owned by the defendant at Watch Hill.

In the fall of 1933, the plaintiff was consulted by the defendant with reference to the building of a potting house on the estate, to be used and connected with a greenhouse he intended to have erected. This greenhouse was to be finished and set up by another concern at a cost of $1,300. For the work as originally figured on, which involved the construction of a one-story building, the plaintiff gave the defendant a rough estimate, apparently so recognized by both parties, of something over $4,000. No detailed plans or specifications were prepared for the potting house, but its general size and design were agreed upon, and after some changes its location on the property was definitely fixed. Generally speaking, the potting house, as finally planned, included an excavated, finished basement with heating for that building and for the greenhouse, above the basement a room with concrete floor and special bins, another room on the second floor to be used as a workshop, electric wiring, plumbing, a chimney, and a roof having four gables. The wall which connected this building with the greenhouse was to be of stone. Certain parts of the excavation were in soil which was very rocky.

In the latter part of October, 1933, the plaintiff was authorized by the defendant to proceed with the work, and did so. As it progressed, certain changes were made by the defendant which increased the cost to some extent. In addition, the defendant ordered the plaintiff to do considerable other work, part of which was the construction of a vegetable cellar, building of a dog run and two hotbeds, the painting of the defendant's residence, and the doing of certain other work about the estate, all of which cost approximately $2,000.

The evidence shows that all of the work above referred to was done by the plaintiff under an oral agreement made by the parties, in substance, that the plaintiff was to be paid by the defendant on the basis of the cost, plus 10 per cent. for the plaintiff's supervision. This agreement also contemplated that the plaintiff should submit his bill to the defendant each month as the work went forward. This procedure was substantially followed. The plaintiff finished the work in June, 1934.

Beginning with the month of December, 1933, he rendered the defendant a bill each succeeding month to and including June, 1934, with the exception of the month of March. On December 20, 1933, the defendant paid the plaintiff $4,000, and on March 1, 1934, $3,000, both on account. The total amount claimed by the plaintiff as set out in his bill of particulars amounted to $12,003.60. This sum covered the work above referred to, and also an item of $396.83 for loam, plus 10 per cent. allegedly furnished the defendant in the spring of 1933. In the instant case, therefore, the balance which the plaintiff under his bill of particulars claimed to be due was $5,003.60, not including interest.

It also appears from the evidence that when the defendant made the payment of $3,000 on account he wrote the plaintiff a letter stating, in substance, that further payments would be delayed, apparently, because of slowness in the progress of the work and the increased cost to date, and asking for a detailed analysis from the plaintiff. Further correspondence followed, and in the months of April and May, 1934, an employee of the defendant, who lived in Watch Hill only in the summer, came to Westerly to consult the plaintiff and check over his bills and accounts. Friction followed these visits; the plaintiff claiming that he had turned over to this employee substantially all his bills and accounts, and the latter contending that the plaintiff had withheld necessary information. Thereafter, the present case was instituted.

At the trial the defendant requested the trial justice to charge the jury as follows: "The plaintiff is entitled to recover the actual cost of the labor and material furnished by subcontractors, plus ten per cent., but is not entitled to ten per cent. of the profit made by each of the subcontractors."

The trial justice charged as requested, with the following modification: "Suppose under the agreement of the plaintiff and the defendant it was reasonable of the plaintiff to sublet a part of the work, then the plaintiff would be entitled to his compensation to the cost of that work plus the ten per cent. In other words, the plaintiff is not compelled to segregate the actual cost of the work and labor and materials furnished by a subcontractor from the profit which the subcontractor makes. That's the subcontractor's business. If the plaintiff under this contract, in a faithful and honest performance of his contract, did sublet a part of the work, and did obtain reasonable bids, and that the doing of the work in that manner could reasonably be expected under this contract which is the base of this suit, then the plaintiff would be entitled to the cost of that subcontract plus ten per cent. On the other hand, if the plaintiff could have more cheaply performed the work himself, could have done it as well as a subcontractor, at a smaller price, but chose to give the profit to the subcontractor, then, of course, the plaintiff would not be entitled to a ten per cent. on such sum."

The refusal of the trial justice to charge as requested without modification is the ground of the defendant's thirty-eighth exception.

The defendant has called to our attention certain cases which he contends support his claim that his above request to charge contains a correct statement of the law applicable to the facts herein. Such cases, however, differ materially on their facts from the instant case, and are, therefore, not controlling here....