W. L. Thaxton Const. Co. v. O.K. Const. Co., Inc.

• Decision Date: 17 September 1982
• Docket Number: No. 15375,15375
• Citation: 295 S.E.2d 822,170 W.Va. 657
• Court: West Virginia Supreme Court
• Parties: W. L. THAXTON CONSTRUCTION CO. v. O.K. CONSTRUCTION CO., INC., et al.

Page 822

295 S.E.2d 822

170 W.Va. 657

W. L. THAXTON CONSTRUCTION CO. v. O.K. CONSTRUCTION CO., INC., et al.

No. 15375.

Supreme Court of Appeals of West Virginia.

Sept. 17, 1982.

Syllabus by the Court

1. "When a written contract upon its face is couched in such terms as to import a legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties and the extent of the undertaking were reduced to writing. Parol evidence will not be admitted to vary its terms." Syllabus point 1, Jones v. Kessler, 98 W.Va. 1, 126 S.E. 344 (1925).

2. "However, a written contract may be modified or its terms altered by a subsequent valid oral agreement, and this may be shown in a proper case. As a rule a consideration must be shown." Syllabus point 2, Jones v. Kessler, 98 W.Va. 1, 126 S.E. 344 (1925).

3. "The verdict of a jury will be held sacred by this Court, unless there is a plain preponderance of credible evidence against it, evincing a miscarriage of justice from some cause, such as prejudice, bias, undue influence, misconduct, oversight, or some misconception of the facts or law." Syllabus point 1, Young v. West Virginia & P. R. Co., 44 W.Va. 218, 28 S.E. 932 (1894).

Arden J. Curry, II, Pauley, Curry & Thaxton, Charleston, for appellee.

Charles W. Yeager, Steptoe & Johnson, Charleston, for appellants.

PER CURIAM:

W. L. Thaxton Construction Company brought suit against O. K. Construction Company and Buckeye Union Insurance Company for breach of contract on an oral agreement subsequent to a written contract. A jury in the Circuit Court of Kanawha County returned a verdict for Thaxton for $147,708. This verdict was allowed to stand. O. K. and Buckeye then appealed, contending that the trial court erred in admitting evidence of oral contracts to modify a written instrument. The appellants also contend that the trial court erred in excluding evidence of O. K.'s payments on behalf of Thaxton because such payments had not been disclosed in answers to Thaxton's interrogatories. The appellants argue that the interrogatories did not require such information. We find that the trial court properly allowed testimony relating to the unsigned contracts, but that the trial court abused its discretion in excluding from evidence material relevant to the measure of damages when any injury to the appellees as the result of failure to respond to interrogatories could have been obviated by a brief continuance. We reverse and remand for a new trial on the question of damages.

The appellee, W. L. Thaxton Construction Company, sought to recover for work done on a sewer construction project that the appellant, O. K. Construction Company, had contracted to construct for the West Dunbar Public Service District. Thaxton was a subcontractor for O. K., and Buckeye was the bonding company for O. K. Thaxton alleged that, at O. K.'s request, from 1 May 1975 to 19 July 1976 it furnished O. K. labor, material, tools, and equipment for construction of portions of the sewer system required by the contract between O. K. and West Dunbar Public Service District. It further alleged that it performed its obligations until 19 July 1976, when it was prevented from further performance by O. K.'s breaches of its agreement with Thaxton. Thaxton then sued for $123,165.33 plus interest from 19 July 1976 and costs.

O. K. and Buckeye admitted the contract and subcontract but denied any breach. O. K. counterclaimed for $50,000 plus interest and costs on the grounds that Thaxton breached its contract with O. K. by failing to perform the agreed work and by negligently performing such work as it did, and by refusing to perform under the contract after 19 July 1976.

This was a very complicated suit with substantial evidence, including exhibits of thousands of pages. Consequently, each side presented summaries detailing work performed, costs and similar information. The jury returned a verdict against the appellants in the amount of $147,708 on 8 October 1980. The trial court denied the appellants' motions to set aside the verdict and for judgment in appellants' favor.

The appellants' first assignment of error is that the trial court erred in admitting Thaxton's exhibits 13 and 14 (consisting of written but unsigned contracts and an addendum) to contradict and change a signed contemporaneous written agreement. The evidence is clear that initially a written and signed contract was entered into between O. K., as prime contractor, and Thaxton and I. V. Cunningham (who is not a party to this action). It is this written and signed contract that the appellants argue cannot be changed by parol evidence.

Thaxton testified that the initial, written agreement was orally modified, and later written but not signed, and that such modifications were again orally modified to eliminate I. V. Cunningham as a party to the agreement, thereby formalizing an oral contract between O. K. and Thaxton, the terms of which were represented by Thaxton's exhibits 13 and 14....