*1 Richmond Company Power Walker, Stewart Inc. John 14, 1974. January Record No. 8243. Present, All Justices. Jr., Wm. for Rosenberger, appellant. Jr., Hobbs & Frost,
5. (Caskie, Davidson, Hamblen, Thompson, J. *2 brief), on for appellee. brief, on for the State Jr.;
Richard D. H. Feck, Rogers, Corpo- Joel Commission, ration amicus curiae. delivered the of the court. J.,
Poff, opinion Walker, Inc., (Walk- On a bill of filed Stewart complaint by John er) Power against Appalachian Company (Appalachian) seeking $10,000.00 inter alia for breach of an contract to damages install, service, free of electrical the trial court charge, underground 13, dated October entered final on the by jury’s judgment $6,000.00. verdict Walker sum of awarding damages Upon Ap- we of the State palachian’s appeal, granted petition Corporation to amicus curiae. (Commission) appear For a number of conducted a sales to years prior Appalachian real estate promotion designed encourage developers program build “all electric” residences. Under that program, Appalachian to install rather than overhead electrical service. agreed underground was allowed a installation, the cost credit Against developer cost, If the credit exceeded the in- based revenues. upon anticipated In order stallation was free of to the charge developer. provided credit, needed a of the subdivision. calculate Appalachian plat of three subdivisions de- In acquired plats Appalachian Walker, on standard written contracts by printed veloped prepared free of In the facilities forms and installed charge. underground 1969, Walker contracted to summer of buy Lynchburg property II, and Locksview Subdivision. which he later as Sections I developed 28, 1969, and the 20 lots was October Section I containing platted commission on November was city planning plat approved from I was across the street Section II lots 1969. Section containing A on 1970. 1970, and the approved May plat platted June was dated 1970. both sections showing composite plat June Miller, and asked Earl Driskill 1969, Walker In the fall of Lloyd electrical serv- to install underground representatives, Appalachian’s ice subdivisions, and earlier Walker terms used in the the same on between that the testified Miller customary understanding they agreed. and the was that would reduce Appalachian developer Appalachian the contract to “in a reasonable time” and submit for it writing sig- Walker, “Fine, nature to the Driskill and Miller told we developer. will work it for up you.”
The contract was never reduced to Walker testified that writing. in his had taken the previous Appalachian, dealings Appalachian initiative to from the a custom confirmed acquire plats surveyor, that the had told him that Driskill; he surveyor surveyor March, mailed the Locksview February plat 1970; that sometime week in 1970 when first May, prior moved business Driskill second Walker new office picked up Walker’s old Miller testified that set of Locksview from office. plats did I until not receive for Section “couple plat that he could not remem- Driskill testified after 1970.” May days he did so he was but that when the date he ber picked up plat it for Section would have told “to hold II] [the they plat up *3 testified one time.” Walker so we could do the whole ready job was not told that. that Driskill to a held show 15, 1970, a
On hearing following pursuant April 1970, the State 17, entered on cause order Corporation February utilities from con- entered an order Commission prohibiting as that con- such sales Appalachian programs ducting promotion entered contracts heretofore into “(B) that Written ducted, provided their terms ...” These with in accordance carried out be pro- may 15, after until sometime unknown to Walker were May ceedings was into effect but that new rule a advised Walker when Miller going rule.” wire on the old On under the to “we are August get you going I was about to street to Section that the adjacent learning facilities that the Walker called Miller be underground asking paved, advised Walker Miller was commenced. before installed be paving order, the 15, 1970 Commission mandate of the under the that April have to the full would and Walker no lawful was pay longer program cost of installation. § 56-6 under Code filed a Walker
On petition August “that in the State 1969) Vol. praying Corporation (Repl. and require Appalachian State permit Corporation install to oral contract honor its Power complainant Company and, free of its subdivision service in electrical charge, underground order entered relax the requirements the extent necessary, entered 16, 1970, On on 1970”. April September an order Walker’s denying prayer. in the bill of filed 30, 1970, to Walker’s
On complaint September a filed trial court on challenging August plea the State on the that of the trial court Corpo- ground of res ration had exclusive plea judicata jurisdiction; of the bill that the matter based on the complaint ground same as to the same as that was the parties already finally adjudicated that the based on the Commission; ground plea illegality unenforce- unlawful and bill contract complaint Commission; rates, rules and able under the adopted by regulations and an answer. 19, 1971, the trial court held
In dated an Ap- opinion April A was em- issues of fact. raised two illegality jury palachian’s plea evidence, at the conclusion of the and on paneled, September trial court submitted the inquiries following jury: Inc., Walker, Has the Stewart “(1) proven by Complainant, John evidence, that or weight, Appala- greater preponderance, had a chian Power prepare obligation Company elec- installation of a written contract for underground signed for Walker 1970? tric service prior April did If the answer to the above “(2) ‘yes’, fail to such duty?” unreasonably perform in the affirmative. The answered both questions jury overruled several the trial court On June trial court the evi- to submit to the agreed pleas. parties before the taken and the dence hearing transcript previously *4 a between the there was contract whether the question The trial a the of and to submit to question damages. jury parties difference, if to determine instructed court any, “[t]he jury I of Locksview Sub- of 20 lots in Section market value the fair 17, 1970.” service on overhead electrical division with Ap- August instruction refused an and the trial court offered palachian $3,546.00”, cannot exceed difference, if that “the told any, jury for verdict Walker returned of installation. cost jury $6,000.00. sum of trial court said that “I dated 1972 the feel In an July opinion resolved in be should favor issues
that all complainant” asked for briefs limited to the should be damages measured rule” or the “cost “value rule”. letter By opinion dated final dated October 1972 the September trial court entered for Walker on the verdict. judgment jury two its nine of error for
Upon assignments Appalachian poses issues,viz., our determination four
“A. Whether the State Commission has exclusive Corporation jur- isdiction E); (Assignment
“B. Whether the Order of the was res (As- judicata E); signment
“C. Whether the contract was alleged illegal E); (Assignment damages (Assign- “D. Whether are limited to cost of installation H).” ment
We seriatim, consideration of these issues ever conscious approach issue, a fact central to each viz., that Walker’s cause of action is based an breach of common contract right an oral reduced within a reasonable time and agreement writing 15,1970. prior April
I. EXCLUSIVE JURISDICTION We have said has no in “[t]he repeatedly herent because it was created Consti power simply Virginia tution; therefore its be found either in con must stitutional or in statutes not contravene that docu which do grants ment.” Power City Co., v. Electric & 197 Va. of Norfolk 505, 514, 90 140, 146 v. Old Dominion S.E.2d Commonwealth (1955); Power U.S. denied, 184 Va. S.E.2d cert. Co., (1945); Richmond v. & Potomac City Telephone Co., Chesapeake 612, 105 (1920). S.E. 127 In for an and statutes looking explication nature of the Commission’s we must first ascertain the power, “ clothed involved, for the ‘has been proceedings ” Forge-Waynes and executive legislative, judicial powers.’ Clifton 38, 47, 181 S.E. boro v. Co. Telephone Commonwealth, Winchester & R.R. (1935); Commonwealth, Strasburg Which Commission’s 55 S.E. exercised several “depends particular proceeding powers *5 but the character the character of the of [Commission] upon Line Coast 211 U.S. Co., Prentis Atlantic the proceedings.” the definition of (1908). delegated Addressing powers Commission, Service of Vermont Vermont Public Court Supreme said: that often difficult between functions are
“It is to distinguish or axe Executive administrative acts and those that not. judicial discretion, exercise of and involve the qualities frequently judgment are deemed characterize a act. But it is the which judicial quality of the act and not the official classification the actor that deter- an act mines this and official the exercise of question, requiring and be administrative accord- discretion may judgment judicial v. Bellows Trybulski to the nature of the matter.” Falls ing 20 A.2d Vt. Hydro-Electric Corp., said, we have the nature of bill was As Walker’s complaint breach of a common law under an contract.1 alleged alleged right raises is had exclusive The issue i.e., with to, exercise adjudicate, power respect judicial Walker, claim asserted the contract against private corporation, service public Appalachian, corporation. and the advanced Com
Collectively, arguments by Appalachian in of exclusive are that Vir mission of the support plea §§ § (1902)2 56-6, and -232 Constitution Code -247 ginia 1969), (Cum. 1970), the Com amended, Vol. as gave (Repl. Supp. broad state’s legislative mission power, police power, encompassing of the service corporations pub regulate public them that in the law; lic duties rates imposed upon regulation and services this plenary paramount; provided, power charged 1969) this extends to under 56-236 Vol. that Code (Repl. power that in manner affect the rates rules and all regulations charged that this service legislative power corporation; rates. in contracts contract transcends rights affecting private “in an bill also acted unfair discriminatory Walker’s 1950”, but this claim Virginia in violation of Title 56 Code manner ... court, or on this the trial raised decided by appeal. pursued, (1902), bill effective when Walker filed his trial Commission, has been Constitu by Virginia replaced and his court petition the Commission relating the language provisions tion been substantially changed. and the Commission *6 § further that
Appalachian Code 56-247 argue 1969) Vol. the required Commission to (Repl. investigate promo- tional and to take action found to be in the practices interest; public that such the Commission its upon investigation, promulgated April such when proscribing practices except pre-existing contracts had been § reduced to that under Code 56-6 writing; (Repl. 1969) Vol. the Commission is the determine forum to proper the service had a a con- public corporation public duty perform tract such as Walker and that its order entered alleged; by September 16, 1970 the Commission ruled in effect that had no such a contract. public duty perform
These do not us that the had Commission ex arguments persuade clusive the cause of action stated in Walker’s jurisdiction adjudicate bill of That cause of action was not based on complaint.
failure to it law. It was perform any public duty imposed by upon based on the breach of a common law under an solely alleged right contract. Unless ousted law, of circuit courts jurisdiction by over common law contract claims.3 jurisdiction and the cite no statute constitutional or which provision ousts circuit courts of such over Walker’s claim. This is jurisdiction Rather, because there is none. the and Code title Constitution every which conferred the Commission powers upon affirmatively pre served such in the circuit courts. It follows that the Com jurisdiction mission’s if was not exclusive jurisdiction, any, jurisdiction.
We now consider had whether the any jurisdiction Walker’s common claim. For the law contract adjudicate jurisdiction, § (b) and Virginia Appalachian rely upon 3 We note from the before Commission that of Walker’s hearing transcript Court, Walker’s bill of then disclosed Circuit openly complaint, pending and for the discussed and counsel for counsel Com that neither fully Appalachian, mission, nor the the Circuit Court’s Commissioners themselves jurisdiction. questioned 4 “(h) The to institute courts ordinary of right any person prosecute action, or com of or motion transmission suit justice any against any transportation shall not be extinguished for claim or cause action such of any against company, pany, im reason of fine or other which the may or by any penalty impaired of breach of because its any be authorized to such company, impose, upon pose, of order or or because failure to any requirement of its duty, comply public (h) (1902). § Constitution 156 Commission ...” Virginia § courts. Code 12-2 Commission and (Repl. 12-2. Concurrent § 157). 1964) Sess.,'c. Acts Ex. Vol. (Repealed by § abridged. law, etc., Code not altered or 56-7 (Repl. remedies § 56-7. Common 1969). Vol. 1969). § Existing Vol. 56-253 (Repl. Code remedies retained. 56-253. § § Vol. as Code 56-6 Constitution (Repl. implemented by court of as a record” 1969) the Commission “sitting empowers the conduct of defined claims of those to hear certain by aggrieved service and “to service corpo- compel any corporation public public ration to observe upon public imposed perform public two For the laws this Commonwealth”. service corporations reasons, that reliance misplaced. § (1902) and (b)
First, language of the Commission “shows 56-6 Code conclusively powers duties relate always public only is not conferred such service public corporations.... fact that be interest the mere may public. these and duties obligations Only imposed *7 and control of the are to subjected supervision utility corporations Co., & Power Ry. Portsmouth v. City the Commission.” of § 362, (b) 60-61, 126 156 54, (1925) S.E. 363-64 141 Va. (discussing § 12-14 Vol. See Code statutes); as (Repl. by prior implemented Sess., we have 157). c. 1964) Acts Ex. Similarly, (Repealed statutes “were that the constitutional said implementing provisions to hear and confer the commission intended to jurisdiction upon in in which the matters such determine cases corporations, against to to relate property rights private controversy primarily injuries News & Light the affect Newport only incidentally.” public Co., 107 59 S.E. Water v. Peninsular Pure Water Va. Co. § as stat- (Discussing implemented prior utes). illustrate, turns
As these Commission jurisdiction upon opinions service the existence of law duty public imposed upon public existed, Where such have held that Commission we corporations. had Ry. Commonwealth, Southern v. jurisdiction. (1920);
S.E. 65
Southern
97 S.E.
Ry. Commonwealth,
existed,
Where none
have held that the
(1918).
we
Commission
Thus,
had no
had no
over a
Commission
jurisdiction.
jurisdiction
street
contractual
to
the streets
obligation
pave
railway’s purely
its tracks.
Portsmouth v.
& Power
City
Virginia Ry.
Co.,
along
Nor did the
over
claim that
supra.
be
if
would
would
benefitted
all
require
public
a town
use a common
Commonwealth v.
railroads
terminal.
serving
Western
Va.
But, Commission, § and the under Code 56-236 argue Appalachian broad over rates extends to legislative Commission’s all power rules and that in manner the rates that regulations charged; affect as that involved in Walker’s claim such were promotional practices rates; because affect and that the there- proscribed they fore had Walker’s claim. We this adjudicate reject on alternative argument grounds.
First, 1969) confers on Code 56-236 Vol. no (Repl. power a common law claim from contract adjudicate arising rates. The is addressed to affects statute “[e]very utility”. public rules It of conduct. It to file requires prescribes every utility *8 and to rate schedules and “all rules open public “keep inspection” or that in manner affect rates to be regulations charged any does It no more than that. charged.”
Second, trial Walker’s contract at was that theory breached its contract to reduce the oral to by failing agreement within a reasonable time to Commission’s writing prior April 1970 As framed as to the order. submitted litigants jury, the factual issue was breached a contractual as While, concede, to the Commission’s order. all the Com- prior mission had the to its power promulgate April pro- under oral contracts scribing obligations Appalachian’s pre-existing to install electrical service free of the Com- underground charge, mission of its this valid exercise cannot confer legislative power common law contract claims itself to power adjudicate that order. arose entry prior is em- is that because the basic premise rates it to exercise broad legislative regulating powers
powered
a common law con-
attendant
to
has an
adjudicate
necessarily
power
is false. Under Vir-
“affects” rates. That
tract claim which
premise
executive, and
of the
the whole
(1902),
legislative,
ginia
distinct
vested
gov-
departments
separately
judicial powers
with
construed
to “clothe” the Commission
We have
ernments.5
the full cloak
executive
but not with
powers
legislative, judicial,
Commonwealth,
R.R. v.
Winchester & Strasburg
of these. See
been
has
S.E. at
That the
693.
supra,
over
of its limited
to exercise one
powers
granted explicit jurisdiction
im-
mean that it has been
matter does not
granted
particular subject
same
over another
to exercise the
subject
power
plicit jurisdiction
same
over the
matter
to exercise another of its limited
or
powers
matter.
203 Va.
“While nowhere in the or- and executive yet powers, legislative, judicial is the pass upon empowered Corporation ganic the contract or to enforce of a provisions private validity to the courts.” is a intrusted contract. This such a exclusively power 113-14, v. Commonwealth, Western Ry. & Norfolk S.E. 57, 63-64, 178 Commonwealth, Lynchburg In City of conclusion that: we Commission’s (1935), S.E. adopted “ does not have that this Commission settled than is better ‘Nothing and determine rights private private adjudicate *9 5 §§ 39, 40,69, 87.
534
contracts between
service
and individuals. Au
corporations
abundant,
thorities are
but a few will
News
suffice. See Newport
Pure
& Water Co. v. Peninsular
Water Co.
(1908),
Light
N. W.
1099;
(1925),
S.E.
&
Co. v. Commonwealth
Ry.
59
Also, see
v. Va. Ry.
Va.
II. RES JUDICATA that Walker’s before the Commission Assuming proceeding valid of one of its it is clear was a exercise non-adjudicatory powers, order of 1970 was not res that the Commission’s September judi be res Administrative what is can cata. adjudicated “Only judicata. Davis, cannot be res K. other than action judicata.” adjudication Law 18.08 Treatise, Administrative could that the had
Even if we assume claim, that claim was not common law contract Walker’s adjudicate nor decided in Walker’s petition order. Commission’s and did not had no
Since power adjudicate claim, the Walker’s Commission’s September adjudicate order cannot Walker’s circuit court action be res respect judicata therefore Walker and whether Commission’s appealed irrelevant. OF PERFORMANCE PLEA OF
III. IMPOSSIBILITY on account of defense of impossibility when “the is not available to impossibility promisor illegality cite decision nor the Commission uphold neither Significantly, law contract claim. a common to adjudicate Commission’s ing
535 due to his fault.” Bristol v. East Housing Authority City Tennessee 64, 273, & Power 183 Va. 31 S.E.2d 276 Light Co., (1944). Whether failure to reduce the oral Appalachian’s agreement within a reasonable time to the date of the Com- writing prior mission’s order was a breach of a contractual which contributed on account of was a factual impossibility performance illegality which the resolved jury against Appalachian. that there was con- no evidence of what
Appalachian’s argument stituted a “reasonable time” is without merit. When a contract does a time for reasonable time. specify performance, implies Merriman v. & S.E. Cover, Drayton 51 817 Leonard, (1905). is well settled that it is for the what is a reasonable
“[I]t say jury time, case, under all the circumstances of the under in proper from structions the court.” Duke v. & Western 106 Ry., Norfolk 152, 155, Va. 55 S.E. (1906). 549
IV. DAMAGES Walker’s evidence tended to show that the lack of under electrical facilities reduced the sale value of the ground 20 lots by $8,000.00. evidence tended to show that the cost of Appalachian’s $3,546.00. installation was The trial court Walker’s instruc granted tion based on the “value” formula, refused instruction Appalachian’s based on the “cost” formula, and overruled motion to set aside the verdict based on the “value” formula. jury A successful is entitled to recover those plaintiff damages are “the and direct natural result of the breach of the contract”. Manss-Owens v.Co. H. S. Owens 183, 201, & 129 Son, Va. 105 S.E. (1921). 549 And of the law in “[t]he object awarding damages amends, is to make reparations, putting party injured same as far as it, can as he do would have if been position, money contract had been Portland Cement Lehigh Co. v. Vir- performed.” Co., 257, 270, 111 ginia S.E. 109 Steamship (1922). Whether “value” formula or the “cost” is formula applicable “will on the facts and the circumstances of the depend particular case.” Mann v. S.E.2d Clowser, Va. “value”
We have of the formula in an recognized application ap- case. Inc. v. Francis, Woods, propriate Barcroft is nature of (1959). The test the motivation which S.E.2d 512 induced the to make the contract. If his interest primary promisee then was the value of the result would have produced, performance itself, if then the the “value” formula applicable; Grismore, on “cost” formula. G. Contracts, Grismore 1965). ed. (rev. Murray J. Walker was uncontradicted evidence was that The developing under- sell that his reason for lots; Locksview Subdivision wanting and market service was to enhance electrical marketability ground both lack such service and that the lots; impaired price that such first found measurable impairment jury degree. *11 breach of a contractual direct result natural and Appalachian’s the trial court’s in the formula no error We find applied duty. instructions. the decree is
Accordingly,
Affirmed. J., dissenting. Carrico, was sufficient the evidence believe that do not present,
I dissent. I holds, a as the respect jury majority court, in trial my opinion, performance. impossibility plea should therefore, would, law. I matter of as a sustained plea in favor final and enter Appalachian. reverse judgment dissent. in this JJ., Cochran, join Harrison