586 N.E.2d 142 | Ohio Ct. App. | 1990
This cause came before the court upon the appeal of L.A. Gross and Sons, Inc. from the trial court's grant of judgment for the appellee on his counterclaim and from the denial of prejudgment interest.
L.A. Gross Sons ("Gross") brought an action against Dante Parisi to recover an amount Parisi owed on an account. Parisi counterclaimed for breach of express warranty. The transaction giving rise to the action began when Gross sold a quantity of concrete to Parisi, who used it to lay a driveway. Parisi then proceeded to use the leftover concrete to lay the foundation of his own driveway. After pouring the leftover amount onto his driveway, Parisi notified Gross that he needed an additional six yards of concrete.
Parisi testified that Gross had the concrete delivered from a different site and that it had been in the truck for approximately four hours. Realizing that the concrete had sat in the truck too long, Parisi called Gross to complain that he would have to add water to the mixture in order to pour it, which would weaken the cement. Gross assured him that the concrete was workable. Upon receiving Gross's assurance, Parisi proceeded to use the additional cement to finish his driveway. A few months after the driveway was poured, it began to peel and crack.
At trial, Parisi did acknowledge receiving a bill from Gross for $4,400, which represented the amount due on the account. According to Parisi, he refused to pay it because of the deteriorated condition of his driveway. Parisi *699 submitted proof to the court that it would cost him $1,425 to replace his driveway.
Prior to trial, the parties stipulated that Parisi owed $4,400 on the account as of September 1, 1988. No stipulation was made, however, as to an award of prejudgment interest. The case proceeded to a bench trial only upon Parisi's counterclaim. The trial court found that Gross had warranted that the concrete was fit for its intended purpose and thus was liable for the defective condition of the driveway. It awarded Gross $4,400, less the damages of $1,425 awarded on the counterclaim. The court refused to award prejudgment interest to Gross. The company appeals and assigns two errors.
Gross claims that the trial court should have awarded it prejudgment interest on the account on the date when payment became due, i.e., September 1, 1988. Gross argues that the trial court erred in determining that Parisi's counterclaim rendered its claim on the account unliquidated when the counterclaim arose out of a transaction that was not part of the account. We agree with Gross that the assertion of a counterclaim does not make an otherwise liquidated claim unliquidated, but we base our decision on different grounds than those that Gross argues in its brief.
In a contract action where the dispute is over liability itself, but the amount of liability is not in dispute or is readily ascertainable, the court should grant prejudgment interest to the plaintiff if the plaintiff prevails upon the liability issues. See Tony Zumbo Son Constr. Co. v. Dept. ofTransp. (1984),
The trial court based its decision for denying prejudgment interest on the appellate case, Sealey v. Boulevard Constr. Co.
(1980),
This court disagrees with the reasoning espoused inSealey and the lower court's application of the case to the facts before it. From our review of other jurisdictions, we find that it is generally held that a single liquidated claim is not rendered unliquidated by the existence of an unliquidated counterclaim. See, e.g., United States v. Commercial Constr.Corp. (C.A. 11, 1984),
While an unliquidated counterclaim does not denude the primary claim of its liquidity, it can reduce the amount upon which the interest is calculated. Jet Boats, Inc., supra,
In the instant case, Gross's claim for $4,400 due on the account was reduced by Parisi's counterclaim award of $1,425, which represented the cost of replacing his driveway. Based upon our decision that a counterclaim does not defeat a request for prejudgment interest, we find that the trial court erred in not awarding Gross prejudgment interest. The interest should have been calculated on the balance of $2,975 from the date the balance became due, September 1, 1988. Appellant's first assignment of error is well taken.
The trial court found that Gross had represented to Parisi that the concrete was suitable for use in his driveway and that Parisi relied upon this representation when he poured the concrete. Because the concrete was unworkable, Parisi had to add water to the mixture, which weakened it considerably and caused it to crack and flake.
An express warranty is created by any affirmation of fact or promise made by the seller to the buyer that relates to the goods and becomes part of the basis of the bargain. R.C.
Apparently, the trial court chose to believe Parisi's version of the facts. From our review of the record, we cannot say that the trial court's judgment was against the manifest weight of the evidence.
Based upon our reversal of the trial court's failure to award prejudgment interest, we vacate the judgment as to the amount of damages and remand this case to the trial court for a determination of prejudgment interest due on Gross's claim.
Judgment accordingly.
REECE, P.J., and CIRIGLIANO, J., concur. *702