Parker v. Knowlton Const. Co., Inc.

• Citation: 158 W.Va. 314,210 S.E.2d 918
• Decision Date: 14 January 1975
• Docket Number: No. 13439,13439
• Parties: Larry L. PARKER v. KNOWLTON CONSTRUCTION COMPANY, INC., and Federal Insurance Company.
• Court: Supreme Court of West Virginia

Page 918

210 S.E.2d 918

158 W.Va. 314

Larry L. PARKER v. KNOWLTON CONSTRUCTION COMPANY, INC., and Federal Insurance Company.

No. 13439.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1975.

Rehearing Denied March 10, 1975.

Syllabus by the Court

1. A specific objection of a party, accompanied with an assignment of particular reasons in support of the objection, together with a statement of the court's ruling appearing in the record of a case, satisfies the requirement of Rule 51, W.Va.R.C.P. that objections to a charge shall be preserved before such may be considered by a reviewing court as error.

2. Although a court is required to instruct or charge a jury on every important theory of claim or defense supported by the evidence of the case, the court is not bound thereby to charge the jury in the exact language proffered by a party's instruction. Within the constraints of fairly presenting all parties' conflicting theories, the court is authorized by Code 1931, 56--6--19 to deviate from the language of proffered instructions so as to effect an ordered and logically connected charge to the jury.

3. It is error to charge the jury with a theory of claim or defense unsupported by evidence.

4. It is not reversible error for a court to refuse an instruction on the binding effect of an unsigned written contract where the reduction of the purported agreement to writing was neither legally essential to the validity of the contract nor mutually understood to be a condition precedent to its completion; the writing being merely a memorial to the alleged agreement.

5. A charge to the jury on the legal effect of an alleged oral agreement later memorialized in writing is not erroneous because it emphasizes the parol origin of the alleged agreement rather than the subsequent writing.

6. Although appellees are permitted by Rule XI, Supreme Court Rules to cross-assign error on appeal by pleading or by presentation in briefs, the Supreme Court of Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those matters passed upon by the court below and fairly arising upon the portions of the record designated for appellate review.

7. 'A motion for a default judgment is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.' Syllabus point 1, Griffith v. George Transfer and Rigging, Inc., W.Va., 201 S.E.2d 281 (1973).

McCamic, McCamic & Hazlett, Jolyon W. McCamic, Wheeling, for appellant.

Pinsky, Mahan, Barnes, Watson, Cuomo & Hinerman, Richard W. Barnes and Raymond A. Hinerman, Wellsburg, for appellees.

HADEN, Chief Justice:

This is an appeal from a final order of the Circuit Court of Hancock County which reversed a judgment of the Common Pleas Court of that county and awarded a new trial to the appellees, who were defendants below. Appellant assigns error and seeks to have this Court reinstate the judgment of the trial court awarding him an amount of $10,562.88 as found by the jury, plus interest and costs. Also as permitted by the rules of this Court, the appellees cross-assign error in the Common Pleas judgment. For reasons which will appear, we reverse the judgment of the Circuit Court of Hancock County and remand the case to that court for final disposition in accordance with this opinion.

The primary question to be resolved on this appeal is whether the evidence introduced at trial required the reviewing court's reversal of the trial court's judgment entered upon a jury verdict because the trial court failed to charge the jury on a significant theory supporting the case of a party, i.e. binding effect of a written contract. Ancillary to the primary issue and preliminary to its resolution, the appellant questions whether an objection of a party, together with a statement of the court's reasoning refusing an instruction appearing in the record of the case, satisfies the procedural requirement that exceptions to a charge be preserved on the face of the charge before such may be considered by a reviewing court as error. Third, we must determine whether this Court may consider assignments of nonjurisdictional error which were not preserved in the designated appellate record and were not the subject of affirmative disposition on prior review in the circuit court. Finally, we must resolve whether the trial court abused its discretion in its refusal before trial to strike a reply pleading filed in response to a counterclaim served eight years previous to the reply.

This litigation arose from a construction project dispute involving the erection of several public school buildings in Hancock County, West Virginia, in which the defendant Knowlton Construction Company, Inc. was the primary contractor for the board of education on the project, the defendant Federal Insurance Company was surety, and the plaintiff Larry L. Parker was a subcontractor for Knowlton Construction Company, Inc.

On April 25, 1962, Knowlton submitted a bid of $3,085,070.00 for the school project based upon plans drawn by Kellam & Foley, Architects, Columbus, Ohio. Although the lowest bid submitted, Knowlton's bid nevertheless exceeded the budgeted funds which had been allocated for the project. Consequently, Knowlton thereafter engaged Raymond C. Reese Associates, of Toledo, Ohio, to re-design the structural steel to reduce costs. Subsequently, Knowlton successfully re-bid the project in a reduced amount and in accordance with the re-drawn plans. Construction began on August 1, 1962.

On October 3, 1962, Parker visited the construction site at the invitation of Knowlton for the purpose of bidding on the erection of structural steel. According to the evidence, Parker had erected steel for Knowlton as a subcontractor on other jobs. At the site, John Davis, Knowlton's job superintendent, gave Parker certain drawings for his use in the preparation of a bid. Throughout the trial, the parties disputed the nature, scope and description of the drawings furnished; Knowlton contended that Parker had been furnished a complete set of drawings embodying both the Kellam & Foley original plans and the Raymond C. Reese modifications, while Parker asserted that at that point in time he had received only the original Kellam & Foley plans. Documentary evidence demonstrated a color distinction in the plans; Kellam & Foley's plans were blueprints, while Raymond C. Reese's plans were white prints.

In any event, Parker, on October 5, 1962, acting upon information within his possession, telephoned the vice president and secretary of Knowlton and tendered an initial bid of $48.00 per ton to erect the steel required for the project. During that conversation the parties bargained and finally agreed upon a price of $45.00 per ton. Subsequently, Knowlton sent Parker a purchase order, dated October 9, 1962, setting forth the terms specified by Knowlton, in the amount mutually agreed upon, and referring to the Raymond C. Reese modifications. This purchase order was not signed by Parker but he nevertheless retained it for his record of the transaction.

Parker commenced work on October 15, 1962. Shortly thereafter, however, he ceased work when, according to his testimony, he first became aware of the changes required by the Raymond C. Reese modifications to the Kellam & Foley plans and ascertained that these modifications required extensive additional work on his part and additional cost not contemplated in his bid of $45.00 per ton. Parker testified that on October 16 he telephoned a man he thought to be A. E. Knowlton, the Chief Executive Officer of Knlwlton Construction Company, and after relating to him the problem attendant to the discovery of the modifications required by the Raymond C. Reese revisions, he received Knowlton's assurance that the compensation for extra work would be resolved to Parker's satisfaction, i.e., he would work it out. Then, because of additional problems with the job which allegedly no one would discuss with him, Parker again ceased work and walked off the job on October 27th or 29th, 1962. Parker then testified that Knowlton again contacted him and said to go back to work and that he, A. E. Knowlton, would personally come to the job site and resolve the contract differences. The differences were not resolved and, on December 3, 1962, Parker left the job uncompleted and did not return.

Knowlton hired another subcontractor, Diniaco Brothers, to complete this portion of the job. The excess costs involved in obtaining the services of Diniaco Brothers over and above the previously agreed figure of $45.00 per ton, formed the basis for the counterclaim asserted by Knowlton against Parker at the trial.

At the trial, Parker proceeded in his claim against Knwlton on the theory of Quantum meruit to recover the value of his services. He introduced time sheets to support his claim. Knowlton, on the other hand, counterclaimed for the breach of the purchase order which it contended was a written contract covering the entire agreement of the parties.

As will appear, the trial court extensively charged the jury regarding the plaintiff's claim to recover the value of his services rendered on the theory of Quantum meruit. The court also charged the jury on the defendants' theory of defense and counterclaim based upon breach of express contract. The court, however, explicitly refused to treat the purchase order as the written embodiment of an express contract. This is the nub of contention on this appeal. Acting in its capacity as an intermediate appellate court, the circuit court reversed the judgment and awarded a new trial because the defendants were not favored with an instruction that would permit the jury to conclude that they were protected by a written contract breached by the unexcused nonperformance of the plaintiff. The trial court, on the contrary, had previously held,...