Trenton Const. Co., Inc. v. Straub, 15914

• Decision Date: 16 December 1983
• Docket Number: No. 15914,15914
• Citation: 310 S.E.2d 496,172 W.Va. 734
• Court: West Virginia Supreme Court
• Parties: TRENTON CONSTRUCTION CO., INC. v. Glenn F. STRAUB, etc., et al.

Page 496

310 S.E.2d 496

172 W.Va. 734

TRENTON CONSTRUCTION CO., INC. v. Glenn F. STRAUB, etc., et al.

No. 15914.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1983.

Syllabus by the Court

1. "A finding of fact made by a trial chancellor or by a trial court sitting in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by this Court on appeal unless the evidence plainly and decidedly preponderates against such finding." Syllabus Point 8, Sanders v. Roselawn Memorial Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968).

2. "[T]he proper measure of damages in ... cases involving building contracts is the cost of repairing the defects or completing the work and placing the construction in the condition it should have been if properly done under the agreement contained in the building contract." Steinbrecher v. Jones, 151 W.Va. 462, 476, 153 S.E.2d 295, 304 (1967).

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

John Marshall, III, Wheeling, for appellees.

PER CURIAM:

This is an appeal from a judgment of the Circuit Court of Ohio County entered in a civil action instituted by the appellant, Trenton Construction Company, Inc., (hereinafter referred to as Trenton), against appellees Glenn and Rebecca Straub, to enforce a mechanic's lien. The lien was based upon certain work performed by Trenton in the construction of the Straubs' home. The Straubs defended the action upon the grounds that the company's work had not been performed in a good and workmanlike manner in the time period agreed upon, and the company had not complied with certain terms and conditions of the contract. In a counterclaim, the Straubs sought damages for breach of contract.

The case was tried without a jury and at the conclusion of the evidence the trial court found that Trenton was entitled to recover $4,619 for the original contract price and extras, and the Straubs were entitled to receive $8,500 from Trenton because of the company's failure to install a moisture barrier in the home as required. Deducting one award from the other, the court concluded that the Straubs were entitled to receive $3,881 and entered judgment for that amount in their favor.

The evidence at trial was limited to two major issues: (1) the amount Trenton was to be paid for the work performed; and (2) whether the absence of a moisture barrier led to the moisture problem in the Straub home.

The record indicates that there was no written contract between Trenton and the Straubs. There was, however, a written proposal submitted by Trenton which stated that the approximate price of the work would be $53,000. That same proposal stated:

"This price includes rough frameing (sic), celetox, roof blacked in only. Block, slab insulation, urathane in finish walls, concrete footers and floors only. Gravel under floors and visqueen vapor barrier. Tin roof add $3,000.00. No stucco. Also includes laying approx 120 ton split rock."

On the basis of this proposal and the testimony adduced, the court found that the contract price was $53,000 and that Trenton was entitled to receive that amount plus $1,619 for extras which Mr. Straub admitted in his testimony was due. The appellants do not take issue with the court's ruling on this point.

Therefore, the only issue involved in this appeal is whether the court erred in finding that Trenton had a duty to provide a visqueen vapor barrier under certain portions of the house and whether the failure to provide that barrier was the principal cause of the Straubs' moisture problem in their home. The appellants also argue that the measure of damages applied by the court was incorrect.

The evidence at trial showed that Mr. and Mrs. Straub hired an architect, Harry Keagler, to draw the plans and specifications for their new home and supervise its construction insofar as any conflicts arose between the construction and the plans. Mr. Keagler testified that his original drawings upon which bids were submitted showed a vapor barrier under the concrete floors of the home. Although the plans did not specifically call for visqueen (plastic) Mr. Keagler testified that "commonly what we use normally would be visqueen of a certain mil thickness. It's a common construction practice I believe at least since I've been familiar with it." Mr. Keagler prepared a second set of drawings to clarify certain elements of the first set. The second drawings again provided for a moisture barrier beneath the concrete slab of the home.

There was sufficient evidence at trial to support the court's ruling that no visqueen vapor barrier was installed under the greater portion of the floors in the home. Mr. Straub testified that core drillings were done throughout the house and no plastic visqueen was found. Harold Kercher, a structural engineer, testified that he observed the core drillings and that there was adequate gravel beneath the concrete but he saw no evidence of a membrane or plastic the purpose of which would be to "make the final break point so that the moisture cannot have access to the bottom of the concrete." He testified that common practice would dictate, even if absent from the specifications, that, "[w]hen you're pouring the slab on ground the basic procedure...