Steinbrecher v. Jones

• Decision Date: 07 March 1967
• Docket Number: No. 12574,12574
• Citation: 151 W.Va. 462,153 S.E.2d 295
• Parties: James N. STEINBRECHER et al. v. Bill H. JONES.
• Court: West Virginia Supreme Court

Page 295

153 S.E.2d 295

151 W.Va. 462

James N. STEINBRECHER et al. v. Bill H. JONES.

No. 12574.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1967.

Decided March 7, 1967.

Syllabus by the Court

1. 'In the absence of a mutual agreement, based on a valid consideration, establishing modification of a written contract, there can be no subsequent modification of such a contract without consideration, and the mere promise of one of the parties to perform what he is already bound to do under the terms of the contract is not a sufficient consideration.' Pt. 5, syllabus, Bischoff v. Francesa, 133 W.Va. 474, 56 S.E.2d 865. 2. The fact that there was no consideration to support an agreement of modification or alteration does not prohibit the waiver of any rights that the parties may have under the provisions of a building contract.

3. Where there is a duty to object or protest the obvious ignoring of specific provisions of a contract, such silence may result in the waiver of one's rights under such provision.

4. Where the owners unqualifiedly accept a completed construction under a building contract and approve of all work as having been done in a workmanlike manner in accordance with the provisions of the contract for such construction, only damages for concealed defects which could not have been discovered by due diligence can be recovered by the owner.

5. Proof of damages under a building contract can not be based on speculation or conjecture as to the amount of damages.

6. Where a building contract calls for furnishing a specific item which is then improperly installed, damages for such breach of the contract can not be based on the cost of replacing such item with a different type of item not called for in the contract.

7. As trial judge should use care in expressing an opinion in overruling objections because such judge has no more right to volunteer before a jury his opinion upon material facts in controversy than to charge the jury in respect to such facts.

8. The giving of an instruction which contains an incorrect statement of law upon which recovery was based constitutes reversible error.

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for appellant.

Levy & Patton, Joe N. Patton, Huntington, for appellees.

BERRY, Judge.

This appeal involves an action brought by James N. Steinbrecher and Dorcie L. Steinbrecher in the Circuit Court of Cabell County, West Virginia, against Bill H. Jones, a contractor, for damages resulting from the defective erection of a house in a subdivision of Huntington, West Virginia, on land owned by the plaintiffs. Plaintiffs sued for $3500 and recovered a judgment for $2700 on June 15, 1964, which became final by the overruling of a timely motion to grant the defendant a new trial on September 24, 1965. Upon application to this Court an appeal was granted from said judgment on May 23, 1966.

In order to prepare the site and construct the house, the parties entered into a contract dated May 17, 1962, which contains a number of paragraphs and clauses, which later became the subject of dispute and which will be discussed as they become involved in the disposition of the case. The exact specifications and plans are not set forth in the contract as such, but are incorporated in it by reference, and among these is a paper labeled, 'Description of Materials', which is a VA-FHA Form used by the United States Government and contains mostly printed catchwords with boxes to be checked or a small space for explanation to be filled in; and consequently, the lack of adequate explanations in this form is likewise the subject of a great deal of dispute.

The complaint in this case charged the defendant with failure to construct in accordance with the plans and specifications, and with failure to do the work in a 'good and workmanlike manner' which was the terminology in the contract stating how the work was to be done. Plaintiffs allege they will be required and have been required to expend large sums of money to correct these deficiencies. Defendant is also accused of having represented that he followed the plans and specifications when in fact he did not. Defendant, of course, denied all these charges. In addition he set up the defense that plaintiffs had accepted the house as it was, because there was a paragraph in the contract which stated that occupancy by the owner would constitute acceptance of the house as completed according to the agreement, and that the owner did move in and this immediately released him. It appears that the price of $21,500 agreed upon for the house had actually been paid by the owners after they moved in and occupied the house.

The court, in a pretrial order, found that the issues whether or not the defendant did construct the house as agreed, what damages have been suffered if it was not properly constructed, and did the plaintiffs, by occupying the house, accept it so as to foreclose themselves from complaint about the matter.

Errors are assigned in this appeal to the effect that there should have been a directed verdict for the defendant, that only concealed defects should be the subject of action, that the evidence concerning the reason plaintiffs moved into the house before its completion was inadmissible, that damages were improperly proved concerning the aluminum gutters, the well, and the septic tank, that a mistrial should have been granted because of prejudicial remarks of the court, that Instructions 3 and 4 offered by the plaintiff and given by the court, were improper and constituted reversible error.

At the time the plaintiffs moved into the house, September 15, 1962, certain obvious defects existed, such as improperly mounted or cracked tile, bath fixtures off-center, piers in the crawl space improperly distanced, bridging omitted between certain joists, cracked or split moulding or trim, and a commode lid or seat so placed that it had to be raised in order to close the bathroom door. In addition, there were other defects that could not have been easily discovered in advance of the moving, such as unlevel bathtub, leaking aluminum gutters, inadequate water supply, odoriferous septic tank, water under the house, and in addition, certain ones that came later such as settling of the house, separation of the front stoop from the house, further damage to tile, etc.

The reason the plaintiffs moved into the house before its completion was due to the fact that they were living in a house owned by the defendant who sold the house to Donald Long, who, at the time he attempted to take possession, found the plaintiffs occupied the house and had no other house to move into. After trying unsuccessfully to get possession and being told various stories by both the plaintiffs and the defendant as to when the new house would be completed, he finally threatened to evict the plaintiffs by legal methods if they did not vacate the house. The plaintiffs then moved into the new house at a time when it was substantially although not fully completed. Among unfinished work to be done were the installation of a furnace, some rough grading, and revamping of the electrical system which apparently had been improperly installed originally. The result was that workmen of various types continued to work in the house a few hours at a time even after the plaintiffs had moved in. The evidence does not indicate any formal agreement between plaintiffs and defendant that the clause relating to occupancy as waiving defects was to be modified, but it is obvious from the evidence that both plaintiffs and defendant were in an embarrassing position and acquiesced in this solution. Evidence on other matters indicates that the parties did modify the contract orally in some important aspects, such as completely reversing the floor plan and adding another room.

After the plaintiffs moved in, they complained at intervals about the various defects heretofore mentioned and defendant made efforts to correct some of them but was unsuccessful in correcting such defects to the satisfaction of the plaintiffs, so that substantially they remained uncorrected up to the time of the institution of this action.

Discussion of the individual defects is necessary to understand the assignments of errors that there is no cause of action for certain items, or, if there was, that the damages were improperly proved.

The aluminum gutters leaked, and the testimony indicates that this is a characteristic of aluminum gutters unless they are very carefully sealed at the joints with a mastic compound, since the joints are slipped together instead of being soldered. In making the estimate of the cost of eliminating these leaks, a witness for the plaintiffs included a figure of $200 for taking these gutters down and replacing them with soldered galvanized ones that would not leak. Defendant contends that the contract provided for aluminum gutters, as it does, and that the measure of damages would be the amount to keep them from leaking and that to charge him with a material of a different type would result in the furnishing of material not required to be furnished under the provisions of the contract. Consequently, he objected to this evidence.

As to the well, the evidence shows that after being drilled 150 feet it produced a relatively meager supply of 20 gallons an hour, making 480 gallons in 24 hours, but in order to obtain that much, it would be necessary to pump it each time it returned to the static water level of about 50 to 60 feet below the surface. Consequently, to remedy the situation and supply at the time required the 150 gallon minimum a day that a family needs, either there would have to be larger storage tanks installed, or the well would have to be drilled deeper to allow a sump for the accumulation of more water. Plaintiffs' evidence gives no figures on these items, but, instead, consists of testimony that a new well of the same depth, using the same...