Spino v. Anderson

• Decision Date: 22 August 1980
• Docket Number: No. 78-94-A,78-94-A
• Citation: 419 A.2d 271
• Parties: Carmino SPINO, d/b/a Tamburri & Son Contractors v. John E. ANDERSON, d/b/a J. E. Anderson Associates. ppeal.
• Court: Rhode Island Supreme Court

Page 271

419 A.2d 271

Carmino SPINO, d/b/a Tamburri & Son Contractors v. John E. ANDERSON, d/b/a J. E. Anderson Associates.

No. 78-94-Appeal.

Supreme Court of Rhode Island.

Aug. 22, 1980.

Kirshenbaum Law Offices, Inc., Sanford M. Kirshenbaum, Providence, for plaintiff.

Edwards & Angell, Deming E. Sherman, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This civil action was brought by a subcontractor, Carmino Spino (plaintiff), against John E. Anderson (defendant), a property owner who was acting as his own general contractor. The plaintiff sought to recover the sum of $24,251.20 allegedly owed him under contract as payment for masonry work done in the course of the construction of an office and warehouse building. The defendant counterclaimed, alleging breach of contract. Sitting without a jury, a justice of the Superior Court heard the evidence and entered judgment for the plaintiff in the amount of $6,662.30 on his claim and dismissed the defendant's counterclaim. The defendant appeals this denial of the counterclaim. He does not appeal the judgment insofar as it granted the plaintiff recovery on his claim.

The dispute arose when, after plaintiff's work had been completed, he sent defendant a bill which noted that $48,000 had already been paid and that a balance of $8,101.20 remained. The defendant disputed some of the items for which he had been billed, claimed entitlement to a refund, and asserted that plaintiff had done his work in an unworkmanlike manner and had not met the schedule to which the parties had agreed. Thereafter plaintiff sent defendant a revised bill that showed $24,251.20 still to be paid. The trial justice in his decision remarked that this series of events reminded him of the old radio show "Can You Top This." After plaintiff had filed suit, defendant counterclaimed, charging delay and unworkmanlike performance which amounted to breach of contract. The evidence adduced by the parties concerning the terms of the agreement conflicted in many pertinent respects, and the trial justice was accordingly confronted with the responsibility of choosing between conflicting accounts of a series of incidents whose occurrence had been accompanied by no little acrimony between the parties.

The defendant asserts that the trial justice overlooked material evidence with respect to defendant's counterclaim for damages arising from plaintiff's alleged failure to construct the subject building to a height of eighteen feet. The parties agree that the building was built to a height of seventeen feet and four inches. One element of defendant's counterclaim rests on the theory that the contract price had been based on eighteen feet; that the erection of the structure to the lesser height was "unworkmanlike"; and that the cost of installing one eight-inch course of construction blocks ought, therefore, to be returned to defendant. The evidence conflicted, however, on what building height the parties had agreed to. The plaintiff testified that the lesser height was the basis for the contract price. According to defendant, the parties had agreed to the greater height and hence constructing the building to the lesser height was unauthorized. Faced with such conflicting testimony, the trial justice had the responsibility of evaluating the credibility of the evidence. In discharging this responsibility he rejected defendant's contentions on this issue. His findings are entitled to great weight and will not be disturbed unless, in resolving the testimonial conflicts presented to him, he misconceived or overlooked material evidence or was clearly wrong. Aiello Construction, Inc. v. Nationwide Tractor Trailer Training & Placement Corp., R.I., 413 A.2d 85, 87 (1980); Nocera v. Lembo, R.I., 397 A.2d 524, 525 (1979); Salo Landscape & Construction Co. v. Liberty Electric Co., R.I., 376 A.2d 1379, 1381 (1977). In view of the contradictory testimony on the terms of agreement, we cannot say that the trial justice was clearly wrong in his findings of fact or that he misconceived or overlooked material evidence on this issue.

As defendant's second ground of appeal, he asserts that the trial justice overlooked and misconceived material evidence when he dismissed that portion of defendant's counterclaim which requested damages for late completion of the masonry work on the building. According to defendant, three...