VanVelsor v. Dzewaltowski, 181-77

• Decision Date: 04 April 1978
• Docket Number: No. 181-77,181-77
• Citation: 136 Vt. 103,385 A.2d 1102
• Parties: Wesley VanVELSOR v. John J. DZEWALTOWSKI and Arlene Dzewaltowski.
• Court: Vermont Supreme Court

Page 1102

385 A.2d 1102

136 Vt. 103

Wesley VanVELSOR v. John J. DZEWALTOWSKI and Arlene Dzewaltowski.

No. 181-77.

Supreme Court of Vermont.

April 4, 1978.

Divoll & Doores, P.C., Bellows Falls, for plaintiff.

Fink & Birmingham, Ludlow, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BILLINGS, Justice.

In March, 1973, plaintiff, a builder, contracted with defendants to construct an exterior shell of a house on defendants' property for a contract price of $20,900.00. During the course of construction, plaintiff at the request of the defendants performed certain additional labor and provided certain additional materials for an added cost of $1,482.43 to defendants. In October, defendants became dissatisfied with the plaintiff's work and ordered him to cease operations. The work was substantially completed at that time. As shown by the detailed final invoice submitted to defendants, defendants had paid plaintiff $15,400.00 of the contract price, and plaintiff estimated that his cost to complete the contract would be $1,303.80.

The plaintiff sued defendants for the balance due under the contract less plaintiff's cost for time and material necessary to complete the contract. The defendants filed a counterclaim that, in essence, alleged plaintiff's prior breaches forced defendants to terminate the contract; they sought damages for their cost in curing alleged defects in the work and in completing the contract.

The trial court gave plaintiff judgment for $5,678.63, the amount due under the contract less the credit of $1,303.80. The trial court also gave judgment to the defendants on their counterclaim in the amount of $3,869.92, which is a sum paid by defendants to a contractor and supplier for labor and material necessary to complete the contract. Only plaintiff has appealed.

Plaintiff has raised numerous claims of error on appeal. In view of our disposition of this matter, we need only be concerned with three of them. First, plaintiff alleges that the trial court failed to find essential facts necessary to support its judgment on defendants' counterclaim. Secondly, plaintiff charges that the trial court erred when it denied interest to the plaintiff on his judgment. Lastly, plaintiff claims that the trial court erred by deducting from plaintiff's judgment his cost to complete the contract, while giving defendants judgment for their cost to complete the contract, thereby granting defendants a double recovery on their claim.

In an action for breach of a construction contract, the measure of damages depends upon which party breached the contract. Where the owner breaches the contract by demanding that the work shall stop, the contractor is entitled to recover the contract price less his cost to perform the remainder of the contract. 5 A. Corbin, Contracts § 1094 (1964); see Gibson v. Wheldon, 82 Vt. 175, 180, 72 A. 909, 911-12 (1909). On the other hand, if the contractor breaches the contract by defective construction, whether the breach is partial or total, or by refusal or failure to complete the work, "the (owner) can get a judgment for damages measured by the reasonable cost of reconstruction and completion in accordance with the contract, if this is possible and does not involve unreasonable economic waste." 5 A. Corbin, supra, § 1089, at 485. In particular, if the contractor has rendered substantial performance of the contract, failing only in some minor particulars, the owner may set off against the contract price a fair allowance to make good the defects. Vermont Structural Steel Corp. v. Brickman, 126 Vt. 520, 523, 236 A.2d 658, 660 (1967).

The measure of damages applicable to the instant situation depends upon whether defendants were justified in terminating the contract. Inexplicably, ...