Shaeffer v. Burton

Decision Date11 July 1967
Docket NumberNo. 12621,12621
Citation151 W.Va. 761,155 S.E.2d 884
PartiesM. David SHAEFFER v. Robert O. BURTON, d/b/a Robert O. Burton, Inc., et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The general rule is that an unaccepted offer to compromise a disputed claim is not admissible as evidence against the party making such offer.

2. 'While testimony offered to show an unaccepted offer of compromise is incompetent and inadmissible, where it appears that such statements were made without any attempt to effect any compromise between the parties, such testimony is admissible under the well-established rule that the declaration of parties to the record against interest may be shown in evidence.' Point 2, syllabus, Averill v. Hart & O'Farrell, 101 W.Va. 411, (132 S.E. 870).

3. The determining factor as to whether a statement is in the nature of a settlement proposal or offer, so as to exclude it from evidence, is whether the form of the statement is explicit or absolute, and if its purpose is to declare a fact really to exist rather than to concede a fact hypothetically in order to effect a settlement, the statement is admissible.

4. It is the peculiar and exclusive province of the jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses is conflicting.

5. A jury verdict based on conflicting testimony involving the credibility of witnesses and approved by the trial court, will not be set aside by this Court as contrary to the evidence unless it is clearly wrong or is without sufficient evidence to support it.

McCamic & McCamic, Jeremy C. McCamic, Wheeling, for appellants.

Gompers & Buch, Joseph A. Gompers, Wheeling, for appellee.

HAYMOND, Judge.

This is a civil action instituted in the Circuit Court of Ohio County May 14, 1964, in which the plaintiff, M. David Shaeffer, seeks to recover from the defendants, Robert O. Burton, doing business as Robert O. Burton, Inc., sometimes herein referred to as the defendant, and Robert O. Burton, Inc., a corporation, the sum of $2400.00 for services rendered by the plaintiff to the defendants during the year 1962 under a verbal contract entered into between the parties in that year. The pleadings in the action consist of the complaint, the answer, the amended answer and the counterclaim of the defendants, in which they seek a recovery from the plaintiff in the amount of $7500.00 for loss of expenses, fees and clients sustained by the defendants because of the failure of the plaintiff to comply with the verbal agreement between the parties, and the answer of the plaintiff to the counterclaim denying the allegations of the counterclaim.

Upon the foregoing pleadings and the testimony of the plaintiff in his behalf and the testimony of Robert O. Burton and Kenneth Bemis, Jr., in behalf of the defendants, the case was tried by the jury which returned a verdict in favor of the plaintiff for $1500.00. The circuit court, having overruled motions of the defendants for a directed verdict, on July 22, 1965 rendered judgment for the amount of the verdict with interest and costs and by its final judgment rendered January 7, 1966, overruled the motion of the defendants for a new trial. From the foregoing judgment this Court granted this appeal upon the application of the defendants.

The plaintiff, whose office is located in the city of Wheeling, is an experienced mechanical engineer and is engaged in the work of designing heating, air conditioning, plumbing, electrical distribution, communications and lighting systems. About one-half of his work is performed in connection with commercial buildings and in such instances he works with an architect who designs buildings. The defendant Robert O. Burton is an industrial designer of buildings and has designed approximately sixty restaurant buildings in various parts of the country which are operated in connection with the Big Boy chain of restaurants. His office is located in Chicago and he is the president of the corporate defendant Robert O. Burton, Inc.

The plaintiff testified that in the year 1962 when he was in Burton's office in Chicago, Burton asked the plaintiff to design the mechanical and electrical work, consisting of plans or designs for plumbing, heating, air conditioning, electrical and lighting work for a one building project in Baltimore, Maryland, which was similar to a Big Boy restaurant; that at the time the building had not been built; that Burton furnished the plaintiff with partial plans of a similar building that had been constructed in Milwaukee which the plaintiff had not seen; that the plaintiff was dealing only with Burton and not with any contractor or the owner of the project; that the plaintiff and the defendants agreed that the plaintiff should perform the services for a three per cent commission upon the lowest acceptable bid of a contractor for constructing the project; that the plaintiff at the time estimated the cost of the work designed by him at $80,000.00 and though he discussed the project in detail with Burton he did not disclose the amount of his estimate; that he prepared the requested designs and that the amounts on each bid on the plans and specifications prepared by the plaintiff amounted to $19,794.00 for the plumbing work, $15,500.00 for the electrical work, and $33,138.00 for the heating, air conditioning and ventilating work, or an aggregate of $68,432.00, and that three per cent of that figure, which represented the lowest acceptable bid, was $2,052.96; that in connection with the work Burton did not submit to the plaintiff any budget or limit as to the cost of the mechanicals designed by the plaintiff for the proposed building; that the designs prepared by the plaintiff were submitted to Burton, who informed the plaintiff that he thought the plans were a very fine set of plans, that it was a fine job, that he was very happy and sent them on to the owner, and that Burton never at any time complained that the plans were excessive or suggested any change or modifications before bids were made on the plans; that after such bids had been made on the plans Burton came to plaintiff's office with a copy of the plans and told the plaintiff that bids had been received and that the job ran too high and required more money than the owner wished to pay and that Burton submitted to the plaintiff suggested changes for him to make in the plans; that the plaintiff replied that he had not been given a budget on the job, that he did what he thought was best in the interest of the owner, that he had done all his work during a period of more than six weeks; that the defendants had taken the plans and had sent them out for bids and that the plaintiff was entitled to payment; that this occurred at a meeting between the plaintiff and Burton in the early part of 1963 after the bids had been received and that Burton told the plaintiff that 'he would put in for payment to the owner and have the owner send me some money.'; that Burton never at any time spoke to the plaintiff about any designs for a second building; that after the meeting in 1963 the plaintiff refused to discuss the matter of modifying his plans until he had been paid for the work he had done, and not having received any money, he did no further work; that not having had any further word from Burton the plaintiff sent him a bill for $2400.00, being three per cent of $80,000.00; that plaintiff had assumed that the cost would be from $60,000.00 to $80,000.00 and that he used the higher figure; that an acceptable bid did not mean a bid that was acceptable to the contractor or the owner or any one in particular; that it is a phrase used in the trade; and that the lowest acceptable bid received means that the contractor who submits the bid is acceptable to the owner and the architect.

On rebuttal the plaintiff also testified in effect that portions of the plans prepared by him were copied in the redesigned plans which were used in the construction of the one building and that if his work had been limited to a budget of $45,000.00 he could not been performed it to conform to the plans of the Milwaukee building.

Kenneth Bemis, Jr., a witness in behalf of the defendants, who is engaged in the restaurant business, testified that he was the holder of a franchise to operate Big Boy restaurants in Washington and was lessee or prospective lessee of two restaurant buildings to be constructed in Baltimore; that he employed the defendant Burton to design the plans for both buildings; that the plans were based on budgets which for one building was $125,000.00 and for the second building was $150,000.00 and that Burton was to receive four per cent of the construction cost of each building for his services; that plans submitted by Burton for one building, including the plans prepared by the plaintiff, required a construction cost for the building of $172,000.00 which was more than the owner, Taylor Avenue Development Company, a building contractor, was willing to pay; that because of the high cost the plans had to be revised and after conferences with Burton and the owner the total construction cost on the basis of the revised plan was $142,000.00 and that on that basis the cost of the work designed by the plaintiff was reduced to $47,000.00; that plaintiff's plans, with certain changes to reduce the construction cost of the mechanicals designed by him to $47,000.00, were given to Burton to be resubmitted to the plaintiff for the suggested changes and modifications; that some of the reasons for the higher construction cost for the design made by the plaintiff were that he had used stainless steel ducts instead of galvanized or tinplated ducts and that he had designed a built up air conditioning unit instead of a package unit and a twenty five ton instead of a twenty ton unit; that as the changes and modifications were not made by Shaeffer the plans were redesigned by...

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10 cases
  • Kane v. Corning Glass Works, 16078
    • United States
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    • 17 Octubre 1984
    ...185 S.E.2d 493 (1971); Syl. pt. 3, Western Auto Supply Co. v. Dillard, 153 W.Va. 678, 172 S.E.2d 388 (1970); Syl. pt. 4, Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967); Syl. pt. 2, Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905 (1966); Syl. pt. 1, Evans v. Farmer, 148 W.Va......
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    ...trial. Such information is generally inadmissible and incompetent to show liability or set the measure of damages. Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967); McMillen v. Dettore, 161 W.Va. 346, 242 S.E.2d 459 (1978). But we believe that settlement discussions have some bearin......
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    ...party incurred through the breach of a contractual obligation must be proved with reasonable certainty." See also Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967); Steinbrecher v. Jones, 151 W.Va. 462, 153 S.E.2d 295 (1967). This case bears some resemblance to Addair v. Motors Insur......
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    ...a matter has thus been put at rest, it should not be disturbed except for grave cause. * * *'. To the same effect see Shaeffer v. Burton, W.Va., 155 S.E.2d 884, 891; Wright v. Davis, 132 W.Va. 722, 727, 53 S.E.2d 335, 337; State ex rel. Showen v. O'Brien, 89 W.Va. 634, 637, 109 S.E. 830, 83......
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1 books & journal articles
  • Of Purposes Not Prohibited: New Federal Rule of Evidence 408(b)
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 40, 2022
    • Invalid date
    ...8. Moffitt-West Drug Co. v. Byrd, 92 F. 290, 292 (8th Cir. 1899). 9. FED. R. EVID. 408 advisory committee's note; Shaeffer v. Burton, 155 S.E.2d 884 (W. Va. 1967); Johnson v. Minihan, 200 S.W.2d 334, 338 (Mo. 1947). 10. FED. R. EVID. 408 (West 2006) (amended 2006); WRIGHT & GRAHAM, supra no......

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