92 W. Va. 368 | W. Va. | 1922
The subject matter of complaint on this writ is the award of a new trial in an action of assumpsit, brought for recovery of compensation for alleged extra work under a contract for the construction of two concrete abutments and the necessary
In the two contracts, one for the work for each bridge, unit prices for excavation and for concrete were adopted. For the work at Roderfield, $5.00 per cubic yard was agreed upon for the excavation, and $18.00 per cubic yard for the concrete. For the Negro Branch work, the prices were, respectively, $2.25 and $17.50. This controversy arises out of alleged misrepresentations by a civil engineer, an employee of the County Road Engineer of McDowell County, to the plaintiff ’s president and general manager, as to the depth of the excavation for the abutments, made, if at all, before the plaintiff’s proposals to do the work were filed. These representations, if made, were that the excavations for the abutments for the Roderfield bridge would be six feet in depth and those of the Negro Branch bridge, six feet on one side and eight feet on the other. They were made upon the assumption that the depths named would carry the excavations to solid rock. Prior to the date on which they are alleged to have been made, some soundings had been made by which it was' supposed solid rock had been reached or located at the depths named. It turned out, however, that they went down only to holders lying on or above the solid rock which it became necessary to take out, to the end that a better foundation than-they afforded might be obtained. For the east abutment at Roderfield, it was necessary to go about one foot deeper, and for the west abutment about three feet and six inches deeper, than was contemplated. For the east abutment of the Negro Branch bridge, it was necessary to go to a depth of 12.4 feet and for the west abutment, 6.8 feet. This charge of verbal representations as to the depth of the con
Over objections interposed by the plaintiff, the court gave a number of instructions at. the instance of the defendant. Although exceptions were taken to the action of the court, in the giving of these instructions, no assignments of error are based upon it. Two instructions requested by the plaintiff were refused. Exceptions were taken to the rulings upon them, but they are not complained of in any assignment of error or argument. In its award of a new trial, the court seems to have proceeded upon one of two theories, lack of right of recovery, by reason of certain provisions of the contract, or excessiveness of the verdict. For the most part, the assignments of error and arguments in support thereof, as well as the argument submitted, for the defendant in error, pertain to the right of recovery. ■
In their negotiations as well as in the making of the contract, the parties used the standard form of specifications and contract, prescribed and printed by the West Virginia State Road Commission. Exclusive of the index, this form makes a book of 117 large pages, and its provisions relate to contracts for the construction of roads, more than bridges. It
Strict application of tke terms of each of these contracts to its subject matter is resisted in argument, upon the ground that the printed form adopted seems to have been prepared for use in contracts for the construction of roads rather than bridges. In this contention, no force or merit is perceived. The provisions of the contract are very general and their terms can be applied to bridgé construction as well as road construction. There can be no uncertainty as to the character of the work called for by it, when read in connection with the specifications and proposals therein referred to. Although it says the contractor agrees to build and complete a bridge, when in point of fact the work contemplated is limited to the building of the substructure for a bridge, constituting only a part of it, the proposal discloses that fact. When the two papers are read together, they leave no doubt as to what kind of work was to be done, and there is no inaptitude in the terms used.
Notwithstanding the stipulation and recital concerning plans, in the Roderfield bridge contract, the evidence of the alleged misrepresentation as to depths of excavations, was admissible, because the contract, as 'written and signed, supplemented by the only plan of the work at that point, disclosed by the evidence, is incomplete. It'does not show the depths of excavation. When a writing bears evidence of incompleteness on its face, oral evidence is admissible to supply the missing or omitted element or factor. Johnson v. Burns, 39 W. Va. 658; Rymer v. South Penn Oil Co., 54 W. Va. 530; Erie City Iron Works v. Miller Supply Co., 68 W. Va. 519. Whether this omission in the plan was supplied by the engineer’s verbal representation as to depths, was a question for jury determination. It depended altogether upon the oral testimony of Thomas, representative of the plaintiff, on the one hand, and that of Early, representative of the County Court, on the other, viewed in the light of the facts and circumstances. Production of the plan by Thomas, showing no depth of excavation, tends very strongly to corroborate him,
The inquiry as to the effect of the stipulation and recital respecting the plans, found in the contract for the other work, involves consideration of additional facts1 or a different state of facts. In connection with that contract, a plan showing depths has been produced, and we are not advised of any . principle of law, authorizing contradiction of the written recital, by oral evidence. Though this recital cannot be so contradicted, there is a strong tendency in the evidence, to show that it covers or involves a mistake on the part of the plaintiff and either a mistake or fraud on the part of the engineer representing the defendant. The latter admits in his testimony, that from June 14, 1919, until July 25, 1919, that plan was not in his office. It had been prepared, but, on June 14, 1919, it was sent to the division engineer of the State Road Commission at Huntington, and was not returned to the defendant’s engineer, earlier than July 25, 1919. When originally prepared, it showed depths of only 2.2 feet for the west abutment and 4.2 feet for the east abutment. Before it was sent away, the figures were changed to conform to new soundings made, showing depths of 8.2 feet for the west abutment and 12.2 feet for the east abutment. The date of the return of the plan from Huntington is somewhat uncertain. The
If the contract was entered into under such a mutual mistake, or a mistake on the part of the plaintiff and fraud on the part of the defendant, there was right in the plaintiff, upon discovery thereof to rescind the contract and refuse to perform it, and it may have been its duty to do so. As to the date of the discovery, the evidence is uncertain and indefinite. On apcount of his illness, Thomas was unable to give the company’s business or these contracts any attention until the middle of October 1919. It does not appear when the work was commenced, but he says he was not on the job until about the middle of October. The first work seems to have been done on the Roderfield job and it may have commenced about the middle of October. About the middle of November, the west abutment for the Roderfield bridge had been completed and the work commenced on the other one. Some time in December, it was found that the excavation for the latter would have to go considerably deeper than six feet. Then, according to the testimony of Thomas, the matter of additional depth was taken up with Early, Thomas insisting that the formation then reached would be sufficient to sustain the abutment and Early insisting upon excavation to solid rock. Additional tests were made as to the depths to which the work should be continued. About January 22, 1920, high water in the river stopped the work and filled up the excavation. Other interruptions from high water followed. The Roder-field job seems to have been completed and the work at Negro Branch commenced in June, 1920. As to this, however, there is some uncertainty in the evidence. At one place, Thomas says he started the work at Negro Branch in June, after having finished the work at Roderfield. At another place, he seems to say adverse conditions found both at Roderfield and
Existence of the mistake, if any, does not alone confer right of recovery. It would have constituted ground for rescission. Discovery thereof would have excused further performance and given right to ask for compensation for what had been done, upon a quantum meruit. The right of rescission so conferred, however, was lost by delay. One having cause or ground for rescission, by reason of a mistake in a contract, loses it, unless, without delay, he asserts his right to it, in some way. 13 C. J. 618. The same limitation applies in eases of right of rescission on the ground of fraud. Coffman v. Viquesney, 76 W. Va. 84; Williams v. Maxwell, 45 W. Va. 291. The time within which the right must be asserted, depends of course, upon the nature of the subject matter of the contract and the circumstances. In the case of
Nevertheless, the mistake may constitute a factor in a cause of action arising out of it in a different way. It may have constituted á consideration for an oral modification of the written contract, or the substitution of a new one, by oral agreement. When the mistake, if any, was discovered, it operated upon both parties and seriously disturbed their relations. Admission ,of the right of rescission would have occasioned delay to the defendant, in securing performance of the contemplated work. The plaintiff could have stopped the work and demanded compensation for what he had done. The simplest and easiest way out of the difficulty was a modification of the contract, so as to enable him to go on and complete his contract, without serious loss, and to give the defendant the mutual advantage of completion of the work, even though at greater cost. It is the contention of the plaintiff that there was such modification, though informally made. Thomas says that, upon discovery of the mistake as to the depth of one of the Roderfield abutments, Early, the engineer representing the County Court, was called upon, and that a conference was held upon the ground and a conclusion reached as to what should be done. He does not claim there was any promise on the part of Early to make compensation for extra work. If this matter was brought to Early’s attention, at the time at which Thomas says he conferred with him about it, he had notice of it and concurred in the plans then made for further prosecution of the work, upon new requirements of the contract, as to depths, very soon after the discovery of the mistake. According to Thomas’ testimony, this conference took place before the second Roderfield abutment was completed, and before work, was commenced on the Negro Branch abutments. In the testimony of Early, no denial of these facts is found. As has been said, it is not claimed that he promised any additional compensation; but, evidently at about the same time, the matter was brought to the attention of Eavenson, president of the County Court. As to this there, is no controversy, for Eavenson admits it. He gave up the
Thomas claims he relied upon this understanding, as a new contract for adjustment, covering the Negro Branch work as well as the Roderfield work, went on and completed both jobs, and then went before the County Court for an adjustment. In the meantime, Eavenson had. ceased to be a member of that body. Negotiations resulted in an offer on the part of the County Court to pay an additional $1,000.00, which the plaintiff rejected.
That a written contract, whether under seal or not, may be modified or a new one substituted for it, by a parol contract subsequently made, is well and clearly established as a legal proposition, by our decisions. Shepherd v. Wysong, 3 W. Va. 46; Baird v. Blaingrove, 1 Wash 170; White v. Toncray, 5 Gratt. 179; Noyes v. Caperton, 68 W. Va. 13; Simpson v. Mann, 71 W. Va. 516; Parkersburg etc. Co. v. Smith, 76 W. Va. 246; Producers Coal Co. v. Midland Coal Mining Co., 82 W. Va. 311. It is well settled also, that no new consideration is necessary for, or essential to, a modification made for correcting a mistake in a contract. “Where a controversy, whether of law or fact, arises between parties under an existing contract, and they adjust it by making a new contract, such new or modified contract is not without consideration, and it is not admissible to go behind it to ascertain which
The legal principles just referred to make it apparent that, if there was a mistake in the contract, or rather, if the plaintiff was induced by a mutual mistake or a mistake on its part, accompanied by fraud on the part of the defendant, to enter into the contract as it was made, the contract was voidable on account of the mistake or fraud; and, although it was in writing, the parties could have so amended it as to avoid the results of the mistake, or so corrected it as to eliminate these results, by a subsequent, parol agreement; and that, if the president of the County Court had authority to bind it, by his agreement to make an adjustment on the basis of an allowance to the plaintiff, of the value of the work in excess of the contract price, there may have been a new contract, or rather a modification of the contract, so as to effectuate this result; unless effectuation thereof in such manner is precluded by the fact that the defendant is á public corporation. 'There was no lack of capacity in the defendant to make such a contract or to make it in the form in which it is claimed it was made. In some instances, the form of contract by which a public corporation may bind itself is prescribed by statute. In such cases, it can contract only in the mode prescribed. In the absence of such restrictions, however, it may contract as other corporations may. No particular formality is required. Cade v. City of Belington, 82 W. Va. 613; Union Water Meter Co. v. New Martinsville, 83 W. Va. 480. There is no statute prescribing the manner in which County Courts shan make such contracts as the one involved here.
Another vital inquiry is whether the president of the County Court, in ordering completion of the work and promising to make a satisfactory adjustment, bound the court. In this connection, it is not necessary to inquire whether he could have made an original contract for the work, on behalf of the corporation. Such a contract had already been formally made by the County Court, in the execution of which,
The only remaining inquiry respecting right of recovery, if it shall be found that the plaintiff has proved its case substantially as stated in its declaration, is the effect of the stipulation that the information upon which the plaintiff acted in entering into the contract was derived from personal investigation or research and that it would make no claim against the defendant by reason of estimates, tests or representations made by any of its officers or agents. Of a similar stipulation in the working contract, involved in Hollenbach v. United States, 233 U. S. 165, the Supreme Court of the United States, speaking through Mr. Justice Day, said: “True the claimants might have penetrated the seven feet of soft, slushy sediment by means which would have discovered the log crib work filled with stones which was concealed below, but the specifications assured them.of the character of the material, matter concerning which the Government might be presumed to speak with knowledge and authority. We think this positive statement of the specifications must be taken as true and binding upon the Government, and that upon it rather than the claimants must fall the loss resulting from such mistaken representations. We think it would be going quite too far to interpret the general language of the other paragraphs as requiring independent investigation of facts which the specification furnished'by the Government as a basis of the contract left in no doubt. If the Government wished to leave the matter open for the independent investigation of the claimants it might have easily omitted the specification as to the character of the filling back of the dam. In its positive assertion of the nature of this much of the work it made a representation upon which the claimants had a right to rely without an investigation to prove its falsity.” No state court stands higher in the estimation of the American bench and
Upon the authorities above referred to, we hold that the stipulation in question does not preclude relief to a contractor who has been induced to make a highly disadvantageous contract, by a false representation as to the character of the work, made by an agent of-a county court, verbally or in writing, whether in the plans and specifications or otherwise, if the consequences of the mistake so induced or the fraud so perpetrated, are so grave m their nature as to constitute ground for rescission of the contract. The stipulation must have
Weakness, shortness and indefiniteness in the evidence, some of which have been sufficiently indicated, however, clearly justified the action of the trial court, in setting aside the verdict. It does not appear when the work was commenced. Nobody gave the date on which the plaintiff got the plan for
The, judgment complained of will'be affirmed.
Affirmed.