Ward v. Smith

• Decision Date: 28 March 1955
• Docket Number: No. 10677,10677
• Court: West Virginia Supreme Court
• Parties: T. A. WARD, Jr., d/b/a Ward Construction Company, v. L. L. SMITH, d/b/a Smith Construction Company.

Page 539

86 S.E.2d 539

140 W.Va. 791

T. A. WARD, Jr., d/b/a Ward Construction Company, v. L. L. SMITH, d/b/a Smith Construction Company.

No. 10677.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 1, 1955.

Decided March 28, 1955.

Syllabus by the Court.

1. When a contract prescribes a designated method of measuring the quantity of material furnished by one party to the contract, which is reasonable and readily available for use by each party and is used by the other party to the contract, the party who furnishes the material will not be permitted to use a different method of measurement to determine the quantity of material furnished by him under the contract.

2. 'In an action at law, a verdict of a jury which is without sufficient evidence to support it, or plainly against the decided weight and preponderance of conflicting evidence, should upon proper motion be seat aside and a new trial awarded.' Point 1 syllabus, Coalmer v. Barrett, 61 W.Va. 237 .

Ernest E. Winters, Norton & Layne, W. H. Norton, Huntington, for plaintiff in error.

Charles F. Bagley, Jr., Russell L. Daugherty, W. H. Darnall, Huntington, for defendant in error.

HAYMOND, Judge.

Claiming an unpaid sum of $24,432.41 for crushed stone furnished under a written contract, the plaintiff T. A. Ward, Jr., doing business as Ward Construction Company, instituted this action in assumpsit in the Circuit Court of Cabell County on February 1, 1952, to recover that amount from the defendant L. L. Smith, doing business as Smith Construction Company.

The case was tried upon an amended declaration filed by the plaintiff, which contained common counts and a special count based upon a written contract between the parties, a plea of the general issue and a special plea filed by the defendant, and a general replication by the plaintiff to the pleas filed by the defendant. By the special plea the defendant tendered and paid into court the sum of $931.36, which was by the defendant alleged to be the only sum to which the plaintiff was entitled for any balance due upon the contract. The tender of that sum, made with the foregoing special plea, was refused by the plaintiff. At the conclusion of the evidence offered by the plaintiff and at the conclusion of all the evidence, the defendant moved the court to strike the evidence introduced in behalf of the plaintiff and to direct a verdict for the defendant. These motions were overruled, and the jury returned a verdict in favor of the plaintiff for $24,432.41, with interest from July 7, 1950.

By order entered January 11, 1954, the circuit court overruled the motion of the defendant to set aside the verdict of the jury and grant him a new trial and entered judgment against the defendant for the amount of the verdict with interest and costs. To that judgment this Court awarded this writ of error upon the petition of the defendant.

Sometime prior to August 16, 1949, the State Road Commission of West Virginia published a notice to contractors that sealed proposals would be received at its office in Charleston until ten o'clock in the morning of that day for several state road projects, among which was one designated as Project No. 5051 for the construction of the Palermo-Spurlockville Road of approximately 25,161 feet, or 4.76 miles, in Lincoln County, West Virginia. The defendant, a general contractor of about thirty years experience, with an office located at Huntington, West Virginia, submitted a proposal to construct the road according to the plans and the specifications of the State Road Commission for the estimated total cost of the entire project of $131,270.55. His bid of that amount was the lowest bid submitted, his proposal was accepted by the commission, and he was awarded the contract.

On August 17, 1949, he entered into a written contract with the State of West Virginia, acting by the State Road Commission, which contained the provisions, among others, that he should furnish at his cost and expense all necessary materials, labor, tools and appliances to build and complete the road in a good workmanlike and substantial manner; that the work to be done by him under the contract should be performed in accordance with the plans and the specifications of the State Road Commission which were referred to and made a part of the contract; and that the construction work should be commenced within ten days after the date of the award and should be completed in one hundred seventy five days. The proposal of the defendant, which was also a part of the contract, provided for an estimate of 12,000 cubic yards of slag as necessary to complete the surface of the road at the price of four dollars per cubic yard which included the cost of the material and the expense of placing it on the road. The estimate of this amount of material had been previously made by an experienced engineer in the construction division of the State Road Commission. By supplemental contract dated September 22, 1949, because of the scarcity of slag, crusher run stone was substituted for the slag required by the original contract at the same price of four dollars per cubic yard.

The original appropriation of $144,000.00 for the completion of the entire project was ultimately increased to $170,000.00 and the amount of the original bid of the defendant of $131,270.55 was increased by reason of an extension of approximately 500 feet of road construction, additional excavation and other extras required and authorized by the engineers of the commission, to $147,750.13 which was the final total amount paid to the defendant for the completion of the project in its entirety.

On September 23, 1949, the defendant as the party of the first part and the plaintiff as the party of the second part entered into a written contract, constituting a subcontract relating to the crushed stone to be used in the construction of the road, by which the plaintiff agreed to furnish to the defendant all crushed rock or stone required for that purpose. This contract contains these pertinent provisions:

'WHEREAS the party of the first part is the general contractor with the State Road Commission of West Virginia for the construction of a certain traffic-bound road from Spurlockville to Palermo Road in Lincoln County, West Virginia, and

'WHEREAS the party of the second part has agreed to crush and furnish crushed stone on said job according to the specifications of said State Road Commission for the consideration hereinafter mentioned.

'NOW THEREFORE THIS AGREEMENT WITNESSETH: That for and in consideration of payments hereinafter mentioned, the said party of the second part does hereby covenant and agree that he will furnish to the said party of the first part, all crushed rock or stone required on said job according to the specifications of the State Road Commission of West Virginia; that the rock or stone will be crushed on the job at such points or places as may be approved by said State Road Commission and run in stock pile or piles; that proper equipment necessary will be furnished by him on the job together with sufficient men to operate the same and that said crushing and piling will be done at such time as may be required by the party of the first part.

'The said party of the first part promises to pay to the said party of the second part the sum of Two Dollars and Seventy Five Cents ($2.75) for each cubic yard of crushed rock furnished to the said party of the first part in accordance with the paragraph immediately preceding hereof, which payment shall be made not later than the 10th day of the month following the month in which said crushed rock was piled.'

In the specifications of the State Road Commission relating to construction is this provision: '(a) No base course material shall be placed until the subgrade has been completed and accepted for a distance of at least five-hundred (500) feet in advance of the placing of the base. No base course material shall be laid upon a wet, muddy, frozen or unstable subgrade. Should any subgrade be dry to the point of being dusty, it shall be moistened by sprinkling as directed by the Engineer.' Another provision of the specifications dealing with the method of measurement contains this language: 'The quantity of work done under this item shall be measured in cubic yards of material used, measured in vehicles at the point of delivery.'

The plaintiff who had been engaged in general excavation and heavy construction work for about six years but had not previously done any work for the State Road Commission or any work in crushing stone become interested in furnishing stone for the project at the instance of a man named Stevens who induced him to purchase a machine which was used to crush the stone. Before entering into the contract with the defendant the plaintiff, accompanied by Stevens and Bradley, the general superintendent of the defendant, visited the project, informed Bradley of the price for which the plaintiff would furnish crushed stone at a stock pile, and consented to the selection by Bradley of the site of the quarry which was located about midway between the ends of the project. The day following this visit the plaintiff, after discussing with the defendant the proposed contract between them, purchased the machine from Stevens and a few days later he and the defendant entered into the written contract of September 23, 1949. During the period November 10, 1949, to July 12, 1950, the plaintiff caused the stone to be quarried, crushed and placed in a stock pile where it was loaded in trucks, furnished by the defendant and driven by his employees, and transported to the various locations on the road for use by the defendant in its construction.

Shortly after the contract of September 23, 1949, was signed, the plaintiff and the defendant, at the project, in the presence of Watts, an inspector for the State Road Commission, agreed that each of the trucks owned and used by the defendant,...