Welch & Sons, Inc.
| Decision Date | 17 September 1963 |
| Docket Number | No. 3280.,No. 3281.,3280.,3281. |
| Citation | 193 A.2d 736 |
| Parties | MATTHEW A. WELCH & SONS, INC., a corporation, Appellant, v. James F. BIRD and Mildred J. Bird, Appellees. James F. BIRD, Appellant, v. MATTHEW A. WELCH & SONS, INC., a corporation, Appellee. |
| Court | D.C. Court of Appeals |
Pierre E. Dostert, Washington, D. C., with whom Samuel C. Borzilleri, Washington, D. C., and Elisabeth Hand Wayman were on the brief, for appellant Matthew A. Welch & Sons, Inc.
Herbert P. Leeman, Washington, D. C., for appellees James F. Bird and Mildred J. Bird.
Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.
Mr. and Mrs. Bird orally contracted with Matthew A. Welch & Sons, Inc., for plumbing services at their residence in the District of Columbia. Dispute arose respecting the quality and quantity of the work done, and the Birds refused to pay the balance alleged to be due for labor and materials. Separate suits were filed by both parties, which were consolidated for trial, and resulted in jury verdicts awarding damages to each plaintiff upon their respective claims. From judgments on these verdicts, the losing parties appealed.
The Birds in their suit against Welch & Sons (appellant here) based their claim for damages (a) in the amount of $500 for conversion of personal property by Welch employees from the Bird premises during the course of the job, and (b) in the amount of $2,500 for failure to execute and complete the work properly. The jury found in favor of the Birds in the amount of $1,400.
Without contesting liability, appellant asks this court to modify the damages awarded by the jury on the ground they were excessive and unsupported by the record. We have nothing before us to indicate whether the jury based its finding of liability upon the theory of conversion or upon breach of contract, or upon both. Furthermore, there is an obvious disparity between the damages proved by competent testimony at the trial and the amount finally set by the jury. The figures are irreconcilable. We are unable to say if this difference is due in whole or in part to the inadequacy of the record.1 Rather than reverse and remand for a new trial on the question of damages only,2 we believe a trial de novo is required on both liability and compensatory damages, at which time the trial judge should direct the jury to state separately the basis for the damages awarded.
Welch & Sons (appellee here) sued Mr. Bird for $1,929.26, representing the balance due for labor and materials under the oral contract of the parties, plus 6% interest per annum from July 1, 1961. By answer appellant contested recovery alleging, among other contentions, that the work was left in a defective and unfinished state.
The only item of work not completed was a leaky valve which Welch offered to rectify, but appellant refused admission for that purpose. As this action on the part of Mr. Bird was the sole cause for the continuing defect, he is in no position to complain when its correction was prevented by his own conduct.3 Under the doctrine of "substantial performance," which is recognized in this and most jurisdictions, a contractor is entitled to recover the contract price less compensatory damages for any injuries found to be due to defective or incomplete work.4 This is the situation in the present case. The jury having found as a matter of fact that there had been substantial performance, we cannot disturb that finding in the absence of manifest error.5
Appellant Bird claims (a) that Welch's failure to obtain certain permits for the work performed rendered the contract illegal and void and (b) that there was error in instructing the jury on the allowance of 6% interest upon the amount due. We find these contentions are not supported by the record or by applicable law. Appellant sustained no damage by the omission of Welch to obtain work permits and the jury was properly instructed that if it found appellant withheld payment unjustly after demand therefor, interest should be added at 6% per annum to the amount found to be due and payable under the contract.6
There being competent evidence to support the verdict by the jury and correct instructions as to applicable law, we find no ground for reversal of the judgment in favor of Welch for the sum...
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