In this action on a building contract, the jury found that the contract had been breached by the builder, Licciardi Construction Company (Licciardi), and awarded damages to the owners, Donald Douglass and Regina Douglass, in the amount of fifteen thousand ($15,000) dоllars. After post-trial motions had been denied and judgment entered on the verdict, Licciardi appealed.
The case was submitted to the jury on special interrogatories. In response thereto, the jury found that appellant had failеd to construct a residential dwelling for appellees in accordance with the parties’ contract and had performed some of the construction in a defective and unworkmanlike manner. The jury found further that the cost of cоrrecting the defects and completing construction as agreed was fifteen thousand ($15,000) dollars. In answer to another interrogatory, the jury found that the dwelling house would
The general measure of damages in breach of contrаct cases is set forth in Restatement (Second) of Contracts § 347 as follows:
Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by
(a) the loss in the value to him of the other party’s performance caused by its failure or deficiency, plus
(b) any other loss, including incidental or consequential loss, caused by the breach, less
(c) any cost or other loss that he has avoided by not having to perform.
“If defective or рartial performance is rendered, the loss in value caused by the breach is equal to the difference between the value that the performance would have had if there had been no breach and the value of such performance as was actually rendered. In principle, this requires a determination of the values of those performances to the injured party himself and not their values to some hypothetical reasonable person or on some market.” Restatement (Second) of Contracts § 347, comment b (emphasis added).
Because it is sometimes difficult in building contract cases to prove with certainty the loss in value to the injured party, he or she may elect to calculate lоss in value in accordance with Section 348(2) of the Restatement (Second) of Contracts. This section provides as follows:
(2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient сertainty, he may recover damages based on
(a) the diminution in the market price of the property caused by the breach, or
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.
This has been explained further in comment c as follows:
c. Incomplete or defective performance. If the contract is one for construction, including repair or similar performance affeсting the condition of property, and the work is not finished, the injured party will usually find it easier to prove what it would cost to have the work completed by another contractor than to prove the difference between the values to him of the finished and the unfinished performance____
Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In thаt case he can usually recover damages based on the cost to remedy the defects____
Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been impropеrly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party. Damages based on the cost to remedy the defects would then give the injured party a recovery greatly in excess of the loss in value to him and result in a substantial windfall. Such an award will not be made. It is sometimes said that the award would involve “economic waste,” but this is a misleading expression since an injured party will not, even if awarded an excessive amount of damages, usually pay to have the defects remedied if to do so will cost him more than the resulting increase in value to him. If an award based on the cost to remedy the defects would clearly be excessive and the injured рarty does not prove the actual loss in value to him, damages will be based instead on the difference between the market price that the property would have had without the defects and the market priceof the propеrty with the defects. This diminution in market price is the least possible loss in value to the injured party, since he could always sell the property on the market even if it had no special value to him.
Pennsylvania courts, consistently therewith, have generally allowed damages for incomplete or defective performance of a building contract to be measured by the cost of completing the work or correcting the defects by another contractor. See, e.g.:
Ecksel v. Orleans Construction Co.,
The plaintiff-appellees in this case sought to recover damages measured by the сost of correcting the defects in the construction work performed by the defendant-appellant. They introduced evidence that the cost of correcting the defects would be $20,574.11. Appellant offered no evidence regаrding the cost of making such repairs. Instead, appellant produced the testimony of a real estate appraiser whose opinion was that the market value of the residence would have been two thousand, five hundred ($2,500) dollars greater if it had been constructed in accord
Factual determinations and issues of credibility of witnesses are left to the jury as factfinder.
Williams v. Dulaney,
The grant of a new trial on the ground that a verdict is excessive and contrary to the weight of the evidence is proper only when the verdict is so contrary to the weight of the evidence that it shocks one’s sense of justice and makes а new trial imperative so that right may be given another opportunity to prevail.
Burrell v. Philadelphia Electric Co.,
Appellant argues, however, that the jury had no evidence on which to base a finding that the difference in market values of the residence defectively constructed and one completed according to the terms of the contract was fifteen thousand ($15,000) dollars. While this is technically correct, it does not impair the validity of the jury’s finding that appellant’s damages were in the amount of fifteen thousand ($15,000) dollars. We interpret the jury’s finding as signifying that the cost of repairs, as awarded by the jury and fully supported by competent evidеnce, was not disproportionate to the loss of value to the plaintiff-appellees.
Appellant also contends that the trial court erred when it allowed plaintiffs’ expert to testify to the cost of
Finally, appellant argues that it was error to allow its expert to be asked on cross-examination whether the witness had beеn employed by appellant on other occasions. We find no merit in appellant’s argument. A party is always entitled to explore the credibility of a witness and to expose any bias or interest which might affect the witness’s testimony.
Downey v. Weston,
Judgment affirmed.
