Parklawn Manor, Inc. v. Jennings-Lawrence Co., JENNINGS-LAWRENCE

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtDUFFEY; BRYANT; DUFFY
Citation119 Ohio App. 151,26 O.O.2d 341,197 N.E.2d 390
Parties, 26 O.O.2d 341 PARKLAWN MANOR, INC., Appellee, v. TheCO., Appellee; Parker Bros., Inc., et al., Appellants.
Docket NumberNo. 6809,JENNINGS-LAWRENCE,6809
Decision Date07 August 1962

George H. Chamblin and Gordon E. Williams, Columbus, for plaintiff-appellee.

Kincaid, Palmer & Randall, Columbus, for defendant-appellee.

DeVennish & Hague, Columbus, for appellant Parker Bros., Inc.

Paul Tague and J. Paul McNamara, Columbus, for appellant Globe Indemnity Co.

DUFFEY, Presiding Judge.

This is an appeal on questions of law and fact based upon a cross-petition of the Globe Indemnity Company against Parklawn Manor, Inc. The action is for reformation of a sanitary sewer contract. Parklawn entered into separate contracts with Parker Bros., Inc., for the construction of storm sewers, sanitary sewers, and street paving in one of its subdivisions. Globe was surety for Parker on the contract bonds. Parker allegedly did not fulfill its contract obligations on the sanitary contract. It was taken off the job by Parklawn, and the work was completed by another contractor. Parklawn filed an action for damages for breach of that contract against Parker, and an action against Globe as surety. The petition relies upon an alleged provision of the contract, identified as paragraph '30. Cancellation of Contract.' The first defense of Parker alleges, in effect, that this paragraph of the contract was inserted as a result of a mutual mistake, and that the provision is, therefore, void. Globe's cross-petition also alleges that this paragraph 30, and the entire page 8 of the contract, were inserted by mutual mistake; that a different page 8 was, in fact, agreed upon, and prays for reformation of the contract.

The case was set for hearing in equity upon Globe's cross-petition. At the conclusion of the evidence submitted by Parker and Globe, Parklawn moved to dismiss the cross-petition of Globe and the first defense of Parker. The court sustained the motion. Globe and Parker appealed.

The case is not properly appealable on questions of law and fact since there was no fact determination by the trial court. However, no objection has been made. The entire trial record is before this court and extensive briefs have been filed. The result would not be affected by a reduction to an appeal on questions of law only. Therefore, this court will proceed to determine the case.

The sanitary contract involved, and all the similar construction contracts in evidence, contain two main divisions--general specifications and detailed or special specifications. General specifications contain provisions dealing with the general legal rights and relationship of the parties. Detailed specifications are more concerned with specific construction aspects.

The appellants' theory of this case is that they have established a prima facie case of mutual mistake consisting of the insertion into the sanitary contract of the wrong page 8 of the general specifications. On that proposition the contract as executed does not portray a meeting of the minds in that respect. Appellant Globe goes a step further and contends that the evidence also sufficiently establishes the actual meeting of the minds upon different provisions, and that those provisions actually agreed to are those contained on page 8 of the Parklawn storm sewer contract which, in turn, was derived from page 8 of a Norton Homes, Inc., sewer contract.

The record clearly establishes the following facts:

1. Jennings-Lawrence Company, an engineering firm, was hired by Parklawn as its civil engineer, and, among other matters, was specifically authorized to 'prepare the contracts,' i. e., the Parklawn storm, sanitary, and paving contracts.

2. The usual method of Jennings-Lawrence in preparing general specifications in these contracts and in similar contracts for other clients was to assemble extra copies of previous contracts. These were obtained from leftover copies or by rerunning the stencils. Sometimes mistakes had occurred in this assembling process. A few had been found and corrected in contracts for other clients. It was admitted that other mistakes might have occurred of which the firm was not aware. (See testimony of the firm's secretary, Mary McKeown.)

3. General specifications of all sewer contracts, whether storm or sanitary, as prepared by Jennings-Lawrence for both Norton and Parklawn, are substantially the same.

4. The pages of the Parklawn sanitary and storm sewer contracts were prepared in the manner stated. So far as the general specifications of the Parklawn contracts were concerned, a new stencil was cut only for the preliminary of first page. The first page of the Parklawn sanitary contract is a new stencil but is taken word for word from page 1 of a contract previously prepared for another client, Norton Homes, Inc.,--even to the point of ending in the middle of the same sentence. Pages 2-3-5-6-7-9-10-11-12 and 12A are all taken directly from the Norton Homes sewer contract, and are either extra copies or reruns of the Norton stencil. Page 8 of the Parklawn sanitary contract was taken directly from the Norton Homes street paving contract and is either an extra copy or a rerun of the stencil

An examination of the various contracts indicates the following:

Parklawn Sanitary Contract

Various changes from the mimeograph copy were made in the detailed specifications. These included the voiding of a provision by the use of a rubber stamp, the X-ing out of some portions, and the inclusion of typewritten changes. See paragraphs 2.05, 2.11, 2.18, 6.10, and see page 19. No such changes appear in any of the portions of the general specifications.

[197 N.E.2d 393] Page 7 of the general specifications concludes with paragraph 37 ('Damages to Property'). This would appear on its face to be both a usual and important provision. However, it ends in mid-paragraph. There is no other property damage liability provision. The effect is that the contract contains no intelligible provision on this aspect.

Page 8 of the general specifications begins in mid-paragraph, and the first seven lines are unintelligible in the context of the contract.

Paragraph 29 on page 8 ('Final Acceptance') is coextensive with, and in complete duplication of, paragraph 45 on page 11.

Paragraph 30 on page 8 ('Cancellation of Contract') makes specific references to 'Section 14.' This reference is unintelligible and meaningless in the context of the contract. However, 'Section 14' of the Norton street contract does tie in with the reference. There is also a reference to Norton Homes as the owner. Most importantly, paragraph 30, in operation and scope, is in direct conflict with paragraph 42 ('Breach of Contract--Surety Or Owner To Complete Work'). Despite the last portion of paragraph 49 concerning cumulative remedies, in our opinion the provisions of paragraphs 30 and 42 cannot be reconciled.

Paragraph 31 on page 8 ('Prices') would also seem to be a usual and very important provision, yet it ends in mid-paragraph and is unintelligible. However, the subject matter of paragraph 31 is fully convered by paragraph 43.

On page 9 the first five lines begin in mid-paragraph and are unintelligible.

Parklawn Storm Contract

Various changes were also made in the storm contract just as in the sanitary sewer contract, i. e., voiding, deletions, and additions. See detailed specifications--paragraphs 2.05-2.09-2.11-2.16-2.18-6.05 and 6.10.

Page 8 of the storm contract commences with seven lines which are a pickup in mid-paragraph from paragraph 37 ('Damage to Property') which starts on page 7.

Paragraph 38 on page 8 ('Estimated Quantities') is on its fact both a usual and significant provision. No comparable provision can be found in the Parklawn sanitary contract as executed.

Paragraph 39 ('Alteration or Modification') would also seem to be on its face a usual and significant provision. Again, no comparable provision can be found in the Parklawn sanitary contract as executed. This paragraph 39 ends in an incomplete provision which ties directly in with the first lines of page 9 and also with the first lines of page 9 in the sanitary contract.

Finally, it is an extra copy or a rerun of the stencil from the Norton Homes sewer contract.

To recapitulate, all the general specification provisions for the Parklawn storm contract came from the Norton sewer contract. All the provisions of the Parklawn sanitary contract, except page 8, came from the Norton sewer contract. Page 8 of the Parklawn sanitary contract came from the Norton street paving contract.

It is also interesting to note that the Parklawn pavement contract basically follows the Norton sewer contract, contains a voided provision by the use of a rubber stamp (see paragraph 47), and contains various typewritten deletions and additions.

It should be borne in mind that only the plaintiff's (cross-petitioner) evidence has been submitted since the case was decided on a motion at the conclusion og Globe's case. On the record before us, we make the following findings of fact:

1. Parklawn authorized Jennings-Lawrence to prepare the...

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