Richmond Redevelopment & Housing Authority v. Laburnum Const. Corp.
| Decision Date | 15 March 1954 |
| Docket Number | No. 4161,4161 |
| Citation | 195 Va. 827,80 S.E.2d 574 |
| Parties | RICHMOND REDEVELOPMENT AND HOUSING AUTHORITY v. LABURNUM CONSTRUCTION CORPORATION. Record |
| Court | Virginia Supreme Court |
Alexander H. Sands, Jr., Edward A. Marks, Jr., Sands, Marks & Sands and Edwards, Rogers & Cudlipp, for the plaintiff in error.
William H. King, Thomas P. Bryan and McGuire, Eggleston, Bocock & Woods, for the defendant in error.
This common law action was brought by Richmond Redevelopment and Housing Authority, plaintiff, against Laburnum Construction Corporation, defendant, seeking to recover damages done to one of its buildings, Unit 14 of the Gilpin Court housing project. The unit was destroyed by a gas explosion alleged to have been caused by defective workmanship and materials furnished by the defendant. When the case was brought to issue the trial court sustained a motion for summary judgment interposed by the defendant, the effect of which was to dismiss plaintiff's action on the ground that is was barred by the statute of limitations, to which ruling we granted a writ of error.
The case involves a contract dated August 20, 1941, wherein it was agreed that the defendant would construct for the plaintiff a series of dwelling units known as Gilpin Court housing project. Under the contract the defendant was to furnish labor and materials and perform all work in accordance with the specifications and drawings.
Periodical payments were made in the amounts determined by estimates furnished by the defendant upon forms supplied by plaintiff. The forms contained this certificate: 'According to the best of my knowledge and belief, I certify that all items and amounts shown on the face of this periodical estimate are correct; that all work has been performed and/or material supplied in full accordance with the terms and conditions of the contract. * * *'
Unit 14 of the project was completed 'not later than February 26, 1943', and was delivered to the plaintiff for occupancy. The answers to interrogatories show that at or near the end of the construction of the units the defendant filed with the plaintiff certificates of completion in order to receive the balances due. These certificates stated: 'The undersigned (Laburnum Construction Corporation) further certifies that all work required under this contract * * * has been performed in accordance with the terms hereof * * * '. There was a final acceptance of the completed project on September 8, 1944, and payment in full was made.
On January 29, 1948, the gas explosion occurred (apparently as the result of a defective union) which caused the damage to Unit 14, and on January 28, 1949, a writ in assumpsit was issued against Laburnum Construction Corporation (the principal contractor) and Carle-Boehling Company, Inc. (plumbing subcontractor) seeking to recover resultant damages, which writ was returnable to March Rules, 1949. At the Second March Rules, 1949, plaintiff filed its declaration of trespass on the case in assumpsit. This declaration contained two counts, (1) for breach of contract or warranty as to materials furnished, and (2) for breach of warranty as to skillfull performance, to which, on April 11, 1949, each defendant filed pleas of non-assumpsit and the statute of limitations.
On September 19, 1949, the plaintiff, by motion, caused Carle-Boehling Company to be dismissed as codefendant and filed an amended declaration of trespass on the case in assumpsit against Laburnum Construction Corporation as the sole defendant. This declaration contained three counts, the added count sounding in deceit.
On October 17, 1949, the plaintiff moved to amend its declaration by striking therefrom the words 'in assumpsit'; the motion was granted, and on November 1, 1949, the plaintiff filed its second amended declaration in accordance with the authorized amendment, whereupon the defendant craved oyer of the original writ and filed a plea in abatement based on the variance between the writ (in assumpsit) and the second amended declaration sounding in tort. On November 2, 1949, the plaintiff filed a motion to amend the original writ in assumpsit to correct the variance between it and the original declaration. The court overruled this motion but granted leave to the plaintiff to amend the writ in assumpsit to correct a variance between it and the then pending second amended declaration; whereupon the court then overruled defendant's plea in abatement. On December 22, 1949, the defendant filed its pleadings which included a motion to strike; demurrer; special plea; and pleas of the statute of limitations and not guilty.
On January 14, 1950, the defendant filed a motion seeking to bring Carle-Boehling Company back into the case as party defendant. This motion was denied and further proceedings were delayed pending an appeal of the ruling, which was affirmed on September 5, 1951. (Laburnum Construction Corp. v. Richmond, etc., 192 Va. 727, 66 S.E. (2d) 474.)
Proceedings were then resumed in the trial court when the plaintiff filed its third amended declaration on February 27, 1952. On February 29, 1952, the defendant filed a motion to strike and a demurrer to the declaration thus amended, both of which were overruled, whereupon the defendant filed (1) a plea of the statute of limitations; (2) a special plea of contractual limitation, and (3) a plea of not guilty.
Theretofore, on October 6, 1951, the defendant had filed interrogatories, calling for answers thereto. The answers were filed by plaintiff on March 28, 1952, and on April 14th the defendant took the depositions of certain of plaintiff's witnesses. Upon the filing of the depositions the defendant, on April 30, 1952, filed a motion for summary judgment based upon the pleadings, the contract and its accompanying documents, the answers to interrogatories and the exhibits in connection therewith, and depositions taken. The motion for summary judgment assigned three grounds, (1) that the third amended declaration was insufficient in law; (2) that any right of action against the defendant was barred by a one year limitation contained in the contract documents; and (3) that it was barred by the statute of limitations.
The original schedule of argument on the motion was interrupted by illness and other excusable eventualities. The defendant's argument in chief was heard on May 27, 1952, and for the reasons aforesaid the plaintiff's reply was not heard until August 2, 1952. At this time, in addition to its general reply, the plaintiff asserted two new theories, (1) that the plaintiff was immune from the defense of the statute of limitations because it was a political subdivision of the Commonwealth; and (2) that the plaintiff was ignorant of any cause of action it may have had prior to the explosion (January 29, 1948) due to fraud of the defendant. While these issues were not presented by formal pleadings at the time of argument, on September 2, 1952, a written replication embracing the two theories was tendered; whereupon the defendant interposed objection to the filing of the replication on the grounds (1) of delay, and (2) that it did not aver that the defendant fraudulently concealed the alleged cause of action (as contemplated in § 8-33, Code, 1950).
The defendant prosecuted its motion for summary judgment under Rule 3:20 (Rules of Court), which reads:
The trial court overruled defendant's first ground for summary judgment which alleged that the declaration was insufficient in law. The court held that Count 2 of the declaration was based upon an alleged breach of an implied warranty of skillful workmanship and use of proper materials, and that while some of the statements relied upon by the plaintiff did not, as a matter of law, possess the qualities of a warranty, there were others which might be warranties, as a matter of fact, dependent upon a jury finding that the alleged warranties induced payment of sums claimed by the defendant to be due under the contract.
The other two grounds in the motion, i.e., (2) that the action against the defendant was barred by a one year limitation in the contract, and (3) that the action was barred by the statute of limitations, were treated in inverse order.
In deciding the applicable period of limitation the trial court held that the third amended declaration was an action ex delicto in three counts, that Count 1 charged a breach of express warranties allegedly made after the work was completed, which induced the payment of the contract price claimed to be due; that Count 2 charged the breach of an implied warranty of skill and workmanship; and that Count 3 charged fraud and deceit allegedly committed after the work was completed which allegedly induced payment of the contract price. The court held that as the action was not to recover money founded upon an award or contract the limitation prescribed in § 8-13, Code of 1950, did not apply; that as it was not an action to recover money paid under fraud, and was not to recover money paid for the construction of a building, but on the contrary was an action to recover for damage to the building caused by the explosion, § 8-14 was also inapplicable.
Thus by the process of eliminating inapplicable statutes providing for the limitation of action, the trial court held the action to be a personal action and that since there was no special statutory limitations covering the case it was controlled by § 8-24, Code, 1950, which reads:
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