L & S Construction Co. v. Bradbury Homes, Inc.

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment for $6,630 entered upon a jury verdict in an action to recover damages for delay in the completion of a contract to install storm drains in a housing project. The declaration relied upon a written contract dated March 27, 1952, and signed by the parties, and upon two supplemental written con ⁴⁷⁸ tracts dated September 10, 1952, and November 5, 1952, modifying in certain respects the original contract. The last contract provided for completion of the work on or before November 19, 1952, with a possible extension if delays were caused by bad weather.

The appellant filed general issue pleas. At the trial, the contracts were offered in evidence, and it was shown that the work was not completed until July, 1953. It was shown that by reason of the delay the appellees were unable to complete the streets or to sell and obtain settlement upon certain houses they had constructed. They claimed damages in an amount measured by the interest they were required to pay on certain construction loans during the period of delay.

"v The appellant’s first contention is that the court .'erred in sustaining an objection to a question put to Mr. Bantes, president of both the appellee companies, in cross-examination. The question was: “Now you [testified] * * * that you never owed any money and that you had paid in advance, which I believe is correct, but wasn’t it agreed at the time this contract was made— before it was made, that work should be paid for in advance?” Passing the point that this seems an obvious effort to vary the contract by parol, we cannot find that the appellant was harmed by the ruling. The question conceded that payments had been made in advance, and it seems quite immaterial whether this was required by the terms of the contract or not. Counsel for the appellant also objected to the court’s charge to the effect that the parties were bound by the terms of the written contracts, on the ground that this precluded the jury from considering whether the delays were “because of waiting for further payments on the contract”, but he also admitted at that time that “actually, the payments do appear from the record to have been made in advance”.

While the witnesses for the appellant assigned various reasons for the delay, which were properly considered by the jury, delay in payment was not relied upon as an excuse. It was undisputed that $5,000 was ⁴⁷⁹ paid when the first contract was executed, other payments were made, as the work progressed, whenever requested, and that final payment in full was made on November 3, 1952, before the last supplemental contract was executed. Mr. Bantes testified: “* * * they always got paid in advance.” Mr. Smith, treasurer of the appellant corporation, testified at one point, without objection, that the payments made were in strict accordance with a verbal understanding he had with Mr. Bantes at the time the original contract was signed. The appellant further contends that the testimony as to the amount of interest due under the construction loans was not sufficiently definite for the jury to consider in awarding damages.

Mr. Bantes testified, without objection, that the Veterans Administration “would not allow us to close the houses until such time as I had one continuous road from a hard-surfaced road continuous up to the development. * * * we couldn’t get them to finish it. We couldn’t get them to complete that portion, therefore we couldn’t put the streets in. Therefore, at one point, we couldn’t get any houses closed.” In response to a question as to how many houses had been completed, ready to sell, in September, 1952, he answered: “About — fifty, yes.” Deeds of trust were produced covering 287 houses in the entire development, and the witness testified that “the fifty are in here”.