Pierce v. Plogger
| Decision Date | 22 January 1982 |
| Docket Number | No. 790993,790993 |
| Parties | Harold G. PIERCE, et al. v. Marshall E. PLOGGER. Record |
| Court | Virginia Supreme Court |
Thomas C. Spencer, Lexington (Spencer, Crawford & Osborne, Lexington, on brief), for appellants.
W. T. Robey, III, Buena Vista, for appellee.
Before CARRICO, C. J., COCHRAN, POFF, COMPTON, THOMPSON, and STEPHENSON, JJ., and HARRISON, Retired Justice.
Harold G. Pierce and Betty R. Pierce filed a civil warrant in debt against Marshall E. Plogger in the General District Court seeking damages in the amount of $4,500 for breach of warranty. The district court judge awarded Pierce a judgment in the amount of $3,385.50, which Plogger appealed to the Circuit Court. A jury heard the case and returned a verdict for Plogger, and the trial court entered judgment upon that verdict. Pierce appeals, alleging that the trial court erred in (1) preventing him from proving an oral warranty in addition to a written warranty; (2) granting instructions B, C, E, and G; and (3) not ruling as a matter of law that consideration for the written warranty had been proved.
The evidence reveals that Plogger, a builder-developer in Rockbridge County, owned a house in the Red Hill Manor subdivision. Pierce inspected the house and on July 12, 1975, entered into a written contract to purchase it for $63,000. The contract set the closing on or before July 25, 1975. Prior to closing, Pierce discovered that the basement of the house leaked badly and that the air conditioning system did not function properly. Pierce notified the realtor who contacted Plogger. Pierce refused to close until after Plogger had executed a written warranty covering the leaking basement and malfunctioning air conditioner, and according to Pierce, had given him a one-year oral warranty covering unknown defects in the entire house.
Plogger corrected the air conditioning system and contracted with Acme Weatherproofing Company to stop the leakage in the basement. The leakage continued, however, and Pierce refused to consider the contract to remedy the leak as satisfaction of the warranty and demanded further action. Subsequently, during the three months after the closing, Pierce detected movement in one of the walls of the foundation against which dirt had been piled to level the front yard. Pierce consulted an architect who inspected the wall and reported that it was defective because it lacked support sufficient for its length and that, unless certain work was undertaken to reinforce the wall, it might cave in. Plogger received a copy of the architect's report but refused to take any action to correct the defects. In March, 1976, Pierce consulted with a contractor to correct the defects, had the work done and paid the contractor the sum of $3,385.50. Plogger refused to reimburse Pierce. Pierce testified that the repair work fortified the house's weakened structural support but did not correct the leakage. The architect corroborated Pierce's testimony.
Plogger denied giving Pierce an oral warranty and claimed that Pierce knew of the crack in the basement wall but never complained. Plogger stated that the crack never changed and that he would have installed "L" walls for $200 to $300 had Pierce allowed him.
At the time of closing, Plogger executed a written warranty as to the basement and air conditioner. 1 At the same time, Pierce contends there was an oral warranty for a period of one year for all other unknown defects in the house. The lower court held that the oral warranty violated the parol evidence rule and was therefore inadmissible. We disagree.
The contract of sale was executed July 12, 1975, and the transaction was closed on July 25, 1975, after Plogger agreed that he would orally warrant the house against any defects in materials for a period of one year and gave the written express warranty. Prior to consummating the closing, the parties agreed that the warranty would be given, but that it would not be delivered to Pierce until Pierce had accepted the deed. This was done, and Pierce complied with all of the terms of the contract of purchase.
In High Knob, Inc. v. Allen, 205 Va. 503, 506-07, 138 S.E.2d 49, 51 (1964), we said:
Under [the collateral contract] doctrine the parol evidence rule does not exclude parol proof of a prior or contemporaneous oral agreement that is independent of, collateral to and not inconsistent with the written contract, and which would not ordinarily be expected to be embodied in the writing. [Citations omitted.]
We therefore hold in the case at bar that the lower court erred in ruling that the oral warranty could not be proved.
Pierce argues that the lower court erred in granting Instructions B and C to guide the jury in determining whether the warranty was supported by a valuable consideration. 2 Pierce further contends that the existence of consideration was a question for the court to decide and should not have been submitted to the jury at all. We agree.
In Main-Atlantic Corporation v. duPont & Co., 213 Va. 180, 184, 191 S.E.2d 211, 215 (1972), we said: "Where a written agreement, whether it is contained in a single document or evidenced by several writings, is clear and unambiguous it is the duty of the court to determine whether a contract exists." Earlier, in Saunders v. Ocean Park Corp., 140 Va. 759, 762, 125 S.E. 685, 686 (1924), we said: "[C]ourts have always construed contracts in writing and determined their legal effect, unless there was something in the particular contract to take it out of the general rule."
We hold that whether there was legal consideration for the written warranty in this case was a question of law for the court to decide.
The evidence reveals that, before contracting with Plogger, Pierce inspected the basement during a dry period. After signing the contract, but before closing, he discovered a cracked basement wall and a severe leakage. Plogger agreed, but failed, to correct the defects before closing. On condition that Plogger give the express oral and written warranties, Pierce agreed to close and not pursue his remedy in rescission. Pierce's...
To continue reading
Request your trial
-
Coca-Cola Bottling Co. v. Coca-Cola Co.
...Financing Corp., 113 Wis.2d 73, 334 N.W.2d 913, 917 (App.1983); Burt v. Horn, 97 N.M. 515, 641 P.2d 546 (App.1982); Pierce v. Plogger, 223 Va. 116, 286 S.E.2d 207 (1982); Kinnison v. Kinnison, 627 P.2d 594, 596 (Wyo.1981); 1 Williston on Contracts § 135A at 216. Performance of a disputed du......
-
Nelson v. Com.
...to be embodied in the writing." High Knob, Inc. v. Allen, 205 Va. 503, 506, 138 S.E.2d 49, 52 (1964); see also Pierce v. Plogger, 223 Va. 116, 119, 286 S.E.2d 207, 209 (1982). Saksen acknowledged in his proffered testimony that change order number 7 did not modify the architects' agreement ......
-
Suburban Leisure v. Amf Bowling Products
...that all the parties' prior agreements merged into the written agreement. Shevel's, 320 S.E.2d at 343 (quoting Pierce v. Plogger, 223 Va. 116, 286 S.E.2d 207, 209 (1982)). The Virginia Supreme Court refers to this exception to the parol evidence rule as the "collateral contract doctrine." I......
-
CGI Fed. Inc. v. FCI Fed., Inc.
...a contractual provision creates a legally enforceable obligation is a question of law we review de novo. See Pierce v. Plogger , 223 Va. 116, 120, 286 S.E.2d 207, 210 (1982). In Virginia, it is well-settled that contractual provisions that "merely set out agreements to negotiate future subc......