Norton & Lamphere Const. Co. v. Blow & Cote, Inc.

• Decision Date: 16 July 1962
• Docket Number: No. 377,377
• Citation: 183 A.2d 230,123 Vt. 130
• Court: Vermont Supreme Court
• Parties: NORTON & LAMPHERE CONSTRUCTION CO. v. BLOW & COTE, INC.

Page 230

183 A.2d 230

123 Vt. 130

NORTON & LAMPHERE CONSTRUCTION CO. v. BLOW & COTE, INC.

No. 377.

Supreme Court of Vermont.

July 16, 1962.

Clarke A. Gravel and Robert K. Bing, Burlington, for plaintiff.

Clifton G. Parker, Morrisville, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

SMITH, Justice.

This is an action of contract instituted by Carleton W. Lamphere and Douglass A. Norton, d.b.a. Norton & Lamphere Construction Company, the plaintiff, against Blow & Cote, Inc., the defendant, in which the plaintiff alleges a breach of the contract between the parties on the part of the defendant with a consequent damage to the plaintiff. Jury trial in the Chittenden County Court in November, 1961, resulted in a verdict and judgment for the plaintiff in the amount of $31,000. The case is here on defendant's appeal, duly taken, from the judgment and verdict below.

Defendant's first exception is briefed upon the refusal of the lower court to grant its motion for a verdict directed in its favor at the close of the plaintiff's evidence which motion was renewed at the close of all the evidence in the case. The essential basis for the motion was that the lower court erred in submitting the determination of the existence of an enforceable contract between the parties to the jury.

In considering defendant's exception to the denial of its motion for a directed verdict the evidence must be taken in the light most favorable to the prevailing party and the effect of modifying evidence excluded. The weight of the evidence and the credibility of the witnesses are for the jury to determine and all conflicts are to be resolved against the excepting party. The motion cannot be granted if there is evidence fairly and reasonably tending to justify the verdict. Whitmore v. Mutual Life Insurance Co., 122 Vt. 328, 330, 173 A.2d 584; Langevin v. Gilman, 121 Vt. 440, 445, 159 A.2d 340.

The defendant is engaged in the road construction business. In the late Spring of 1959, the defendant was awarded a contract for a road construction job in the vicinity of Danville, Vermont, by the State fo Vermont. The plaintiffs were associated as partners in the sand and gravel business which included the crushing of rock to various sizes for use in road construction. Upon learning of the contract for road construction awarded to the defendant, the plaintiff contracted Mr. Cote, Vice-President and Treasurer of the defendant corporation, and a discussion ensued involving the furnishing of the crushed rock needed for the road construction by the plaintiff to the defendant.

Mr. Cote asked the plaintiff to furnish the defendant a quotation on the crushed rock needed and the plaintiff immediately proceeded to do so at Mr. Cote's office. The quotation, furnished in writing by the plaintiff to the defendant was $1.40 per yard for 24,000 yards of 4-inch minus base rock, and $1.80 a yard for 3500 yards 2 1/2-inch minus rock. The total written estimate was $39,900.

After the plaintiff submitted the quotation to Mr. Cote he stated that he wished to discuss the matter with his partner, Mr. Blow. Later, the plaintiff Norton was called by Mr. Blow and told that they would have the job and that a contract would be sent them.

On July 13, 1959, the following letter was sent by the defendant to the plaintiff:

'Norton & Lamphere Const. Co.

'P. O. Box 46,

'Jericho, Vermont

'Gentlemen:

'We enclose herewith three copies of contract which have been revised per your request.

'The original and copy should be signed by you and returned to this office. At which time, we will sign the original and return it to you.

'The third copy, which is marked, should be retained for your files.

'Very truly yours,

'BLOW & COTE, INC.

'(Dennis Cote)'

The original and copies mentioned in the above letter were in the words and terms below quoted 'P.O. Box 46,

'Jericho, Vt.

'Blow & Cote, Inc.

'P.O. Box 637

'Morrisville, Vermont

'Gentlemen:

'We hereby submit specifications and estimates for:

'Danville Project F 028-3(2).

'Crushing, feeding, stocking and screening the following items in strict accordance with Vermont State Highway Specifications:

'Item 204 Approx. 24,000 c.y. Subbase of Crushed Rock (4"' minus) at One Dollar and Forty-Cents ($1.40) per cubic yard. To be completed by May 01, 1960.

'Item 211. Approx. 3,500 c.y. Crushed Stone Base Course (2 1/2"' minus) at One Dollar and Eighty Cents ($1.80) per cubic yard. To be completed by June 01, 1960.

'Payments to be made bi-monthly and to be based upon estimated quantities in stockpiles.

'NORTON & LAMPHERE CONST. CO.

'By

'Approved and Accepted by:

'__________

'__________

'Date ________'

The revision made at the request of the plaintiff was the provision for the bi-monthly payments.

The original and copies of the above document were signed by Mr. Lamphere for the plaintiff, who retained one copy and sent the original and other copy back to the defendant. The document was never signed by the defendants, or either of them.

The further history of the transactions between the parties discloses that the plaintiff was first informed by the bookkeeper of the defendant that the defendants had not been in the office to sign the documents. In July, 1959, Mr. Lamphere discussed the crushing of the rock with Mr. Cote. In September, 1959, the plaintiff was informed by Mr. Cote that it would be necessary for the defendant to remove the overburden, referring to the surface soil over the rock to be crushed, before plaintiff could commence the rock crushing. In October, 1959, Mr. Cote informed the plaintiff that the State of Vermont would not pass the rock (the subject of the proposed crushing) as being hard enough for the purpose.

In the latter part of October, the plaintiffs called upon Mr. Cote, who then informed them that a further sample of rock from the proposed quarry was to be submitted to the State and that plaintiffs would be notified of the result of the test. This was never done, although the rock in question received State approval and the defendant never permitted the plaintiff to crush the rock for it, but on the contrary, the defendant itself performed that operation. Evidence is undisputed that the plaintiff performed various acts and made expenditures in reliance upon the purported contract.

Apparently, the defendant was under the impression that if it did not sign the documents submitted to the plaintiff, that no contract would exist between the parties, but the testimony of Mr. Cote was that the parties had reached agreement on the terms expressed in the document which defendant's own letter termed a contract, and that no disagreement then existed between them.

In this Court, the defendant, by its brief, recognizes that under the circumstances here existing it would not have been necessary for the parties to have had a formal written contract in order to establish the existence of an enforceable agreement between them, but alleges that the discussions, negotiations and documentary evidence present in this case do not disclose such a final acceptance on the part of the defendant as to constitute a contract between the parties.

In the instant case, however, we do have a written contract, containing terms, which the evidence discloses, had been fully agreed upon by both parties. Drawn by the defendant, who now seeks to deny it, it was sent to the plaintiff who affixed its signature to it, thus accepting it. While the defendant did not sign the contract, as it had agreed to do, the fact is that it had already accepted the terms expressed therein and had itself reduced them to writing. The accepting and adopting of a written contract by a party who has not put his name to it, binds such party equally as if he had signed such contract. When this contract was accepted by the plaintiff, under the circumstances existing here, it became binding upon both parties, the same as if it had been signed by both. Brandon Manufacturing Co. v. Morse, 48 Vt. 322; Patchin v. Swift, 21 Vt. 292, 296. The fact that the defendant believed that such contract would not be binding upon it without its signature is of no consequence. It is a general rule of construction of contracts that the language and acts of a party to a contract are to receive such a construction as at the time he supposed the other party would give to them, or such a construction as the other party was fairly justified in giving to them, and he will not, at a later time, be permitted to give them a different operation in consequence of some mental reservation. Right Printing Co. v. Stevens, 107 Vt. 359, 365, 179 A. 209, 100 A.L.R. 528.

Viewing the transaction between the parties from a different aspect, the defendant, by reason of its letter and proposed contract sent to the plaintiff, made plaintiff an offer. The plaintiff, by signing the proposed contract, accepted the offer. The effect of the acceptance by the plaintiff was to make the offer into a binding contract between the parties. Drew v. Edmunds (Ellison), 60 Vt. 401, 407, 15 A. 100, 6 Am.St.Rep. 122; 12 Am.Jur.Contracts, p. 531.

We attach no importance to the contention advanced by the defendant that because, as it claims, the rock which was to be crushed had not been approved by the State until a much later date than that of the signing of the contract by the plaintiff, that an essential subject matter of the contract was missing, necessary for its performance. Taken in the light most favorable to the plaintiff, the evidence on this subject is not as the defendant would have it, nor does it appear that it was a contractual term between the parties. The evidence, considered in the light most favorable to the plaintiff, who was the prevailing party below, fairly and reasonably tends to justify the verdict. No error is found in the denial of the motion of the defendant for a directed verdict by the trial court.

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