N.E. Redlon Co. v. Franklin Square Corp.

• Citation: 11 A.2d 821
• Parties: N.E. REDLON CO. v. FRANKLIN SQUARE CORPORATION.
• Decision Date: 05 March 1940
• Court: Supreme Court of New Hampshire

11 A.2d 821

N.E. REDLON CO.

v. FRANKLIN SQUARE CORPORATION.

Supreme Court of New Hampshire. Strafford.

March 5, 1940.

[Copyrighted material omitted.]

Transferred from Superior Court, Strafford County; Connor, Judge.

Action in assumpsit by the N. E. Redlon Company against the Franklin Square Corporation for balance alleged to be due upon a contract for building construction. Case transferred on plaintiff's exceptions to an order of the superior court ordering the rehearing of certain issues.

Case discharged.

Assumpsit, to recover the balance due upon a building contract. The case was recommitted after the former opinion, 89 N. H. 137, 195 A. 348, 197 A. 329, for further findings of fact which have been made by the referee, whose supplementary report has been accepted by the Superior Court. The defendant excepted to the findings, to the allowance of the report, and to the failure of the referee to grant numerous requests for findings and rulings. Upon defendant's motions the Superior Court ordered the rehearing of certain issues, and the plaintiff excepted. All exceptions have been transferred by or sent up on bills of exceptions allowed by Connor, J. The facts appear in the opinion.

Conrad E. Snow, of Rochester, and Frank E. Blackburn, of Dover, for plaintiff.

Laurence I. Duncan, of Concord, and Maurice E. Rosen, of Portland, Me., for defendant.

PAGE, Justice.

I. One of the purposes of the recommittal after the former opinion was to ascertain what, if any, allowance should be made to the defendant because of the substitution of damp-proofing for membrane waterproofing on the outside of the foundation, walls.

At the last hearing it appeared that the plaintiff, before making its own bid to the defendant, received a bid for the waterproofing from the Western Waterproofing Company, which likewise made identical bids to other general contractors who were estimating on the defendant's building. The Western's estimator testified as to the process of figuring and making these bids. He stated that in the preparation of his bid (which later became the basis of the plaintiff's bid and the contract price) he examined the specifications and the plans. He noted that neither provided for the application of membrane waterproofing under the footings and the basement floor, with a complete bonding, which he said is usual in that method of waterproofing. Without such bonding, water at pressure would be likely to pass under the footings and into the cellar, even though it were kept from coming through the walls. He further noted that the specifications called for "two coats" of "membrane waterproofing". The phrase "coats" is used in connection with damp-proofing, but not in connection with membrane waterproofing. In view of these facts he interpreted the plans and specifications as calling for damp-proofing, and he made his estimates and bids accordingly.

Two architects called by the defendant gave testimony consistent with the above. One said that the words "two coats" made it "A matter of judgment there as to the interpretation of two coat or one coat membrane waterproofing." The other agreed that the phrase required interpretation.

This line of evidence was excepted to on the ground that it varied the interpretation of the contract as settled by the former opinion. It was not offered or admitted for that purpose, but solely upon the question of damages. If the contract price had included a charge for membrane waterproofing, justice might have required an allowance of the difference between the cost of membrane waterproofing and that of damp-proofing. If no such overcharge were made, a credit would not be compelled. The exceptions to the admission of this evidence and to the denial of the motion to strike it out are overruled. The evidence warranted the finding that no allowance was due, and the exceptions to the finding and to its allowance are also overruled.

The referee refused to hear evidence on the question of other (consequential) damages caused by the substitution, and the defendant excepted. The subject of such damages was thoroughly tried at the original hearing, and certain damages were then allowed. At the time of the former transfer the defendant did not raise any question as to these damages, but merely the point that damp-proofing was substituted at about one-ninth of the cost of membrane waterproofing. No claim was made prior to the last hearing that any new evidence had been discovered as to the issue of consequential damages.

Moreover, the referee has made a finding that the purpose of membrane waterproofing was to give the defendant a wall that would keep the water from going through, and that the purpose of the damp-proofing was the same. The exception to this finding is overruled. If it might be thought that one treatment would be more effective than the other, the referee took the view most favorable to the defendant, that the plaintiff was bound to furnish a wall through which water could not come. It was because such a wall was not furnished that the referee awarded the defendant consequential damages at the first hearing.

The defendant's requests for findings and rulings on this branch of the case have all been examined. All were irrelevant, or inconsistent with the views here expressed, or based upon selected evidence which might have been disbelieved.

II. With reference to the failure of the plaintiff to perform its contract to spread gravel making "at least a six inch bed under all [basement] floors", the former opinion ordered a recommittal, with a rehearing if necessary, to determine (1) whether the defendant knew of and consented to the deficiency and if not, (2) what would have been the cost to the plaintiff of preparing for, furnishing and spreading the deficiency that might be found. But it was ordered that no deduction from the contract price should be made (a) because the fill furnished does not properly drain the building, the contrary having been properly found, or (b) because of any deficiency in ledge excavation, since the defendant has been charged for only so much as was done. The fact of incidental damages having thus been negatived, the only issue was the amount of money saved by the plaintiff at the expense of the defendant (because of deficiency of earth excavation, gravel and spreading) without the consent or waiver of the defendant.

After further hearing on recommittal, the referee has made an allowance for the deficiency because "it was not proved that the defendant knew of or consented to the deficiency". The credit given was $115 for shortage of gravel, $15 for defendant's stone chips used, and $49.25 for deficiency of earth-excavation.

The defendant excepted to the findings and to their allowance on the ground that they are not supported by evidence. They clearly have such support, and the exceptions are overruled.

In connection with this branch of the case, certain of the defendant's requests were denied subject to exception. One of these requests was to the effect that no fill gravel was purchased from January 1 to May 1 (the floors were laid in February). That seems to be the fact, but if found "it would have settled nothing". Roberts v. Power Company, 78 N.H. 491, 493, 102 A. 537. Such a finding would not have excluded the probability that during the period named, and earlier, the plaintiff purchased enough gravel of this and a better grade to have done all the work required by the contract except for the shortage now found and credited to the defendant. The amount of that shortage, if added to actual purchases, would have been equivalent to the total estimated by one of the defendant's witnesses as sufficient for the full performance of the contract.

The other requests on this branch of the case all centered about the question of burden of proof. The objection that the plaintiff's evidence asserted that the fill was properly made, that the plaintiff must have known of the extent of the shortage, but offered no proof of it, is not well taken. If the hint was intended that the plaintiff was acting in bad faith, the record does not compel such a finding. It is a familiar principle that the burden of proof does not require the plaintiff to produce the evidence upon which the referee bases his finding; the referee may properly rely upon the defendant's evidence, and he did so in this instance.

Nor is it a determinative matter that the plaintiff did not produce the daily reports made by the plaintiff's employees of the use of gravel, though demanded nine years after the transactions. The active manager of the plaintiff died before the first trial, and the plaintiff had ceased to do business prior to the demand for production. There is no evidence that the daily reports were ever intended or used for any purpose other than as the basis for monthly entries on a memorandum cost-account which was produced, but which made no distinction between gravel used for cement and that used for fill. If that were their sole purpose, they were not designed for the keeping of an account with the defendant, and the supposition of their intentional destruction would have no significance useful to the defendant.

The request that the disappearance of these slips "must receive great weight" did not compel an affirmative answer. There was no evidence to weight except that produced by the defendant. The weight of that evidence (of ocular examination of the material in the test-holes), upon which alone the referee based his findings, could not be affected by the absence of the slips or other evidence produced by the plaintiff.

All exceptions to the denial of requests on this branch of the case are overruled.

III. In the former opinion it was pointed out that the changes in the basement floors would entitle the defendant to a credit if the defendant did not consent, unless they were made by the architect as authorized by the contract and were minor, involving no extra...