Bensch v. Davidson

580 S.E.2d 128, 354 S.C. 173, 2003 S.C. LEXIS 84
CourtSupreme Court of South Carolina
DecidedApril 28, 2003
DocketNo. 25633
StatusPublished
Cited by15 cases

This text of 580 S.E.2d 128 (Bensch v. Davidson) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bensch v. Davidson, 580 S.E.2d 128, 354 S.C. 173, 2003 S.C. LEXIS 84 (S.C. 2003).

Opinion

Justice MOORE:

We are asked to determine whether the trial court made certain errors in this breach of contract action. We affirm.

FACTS

Respondents, residential home builders, and appellants entered into a contract for the construction of a home in the Rose Hill Plantation development. No fixed time was set for the completion of the contract.

From the outset of construction, appellants requested several material changes to both the construction method and the house design. These changes resulted in more expenses and affected the timeline of finishing the house, especially when some of the changes were requested after work had been completed. Some, but not all, of the changes were reduced to writing in the form of change orders.

Respondents also encountered problems when appellants had additional contractors appear unannounced on the jobsite to do certain jobs. In March 1998, respondents sent a letter to appellants regarding their use of third-party contractors and informed them that two of the contractors appellants hired had created drainage problems.

The contract between appellants and respondents called for respondents to submit regular requests for progress payments as construction was completed.1 Respondents submitted draw requests and written change orders to appellants. Appellants paid the first three draw requests and some of the change orders. The last payment respondents received was on November 5, 1997. Subsequently, two draw requests were submitted to appellants, however, the requests were not paid. Respondents continued working for four months after receiv[176]*176ing the last payment and continued to pay suppliers and subcontractors until they ran out of money.2

On April 9, 1998, appellants’ attorney sent a letter to respondents terminating them from the job immediately. Appellant Jim Davidson admitted on cross-examination that, at the time of termination, there was still work to be done under the contract and the change orders.

Prior to terminating respondents, appellants contacted Randy West, a general contractor, to have him determine whether the percentage of completion of the house was consistent with the amount of money that had been paid to respondents. West visited the job site and determined the statement of completion was not consistent with the amount that had been paid. However, West recommended that respondents be allowed to finish the job. After respondents were terminated, West agreed to complete the job and correct certain items.

Respondents brought an action against appellants. Appellants counterclaimed seeking damages for breach of contract as a result of respondents’ defective and incomplete performance and damages for two other counterclaims.

Appellants alleged respondents built the house approximately two feet below the elevation level called for in the plans and failed to put in fill dirt to raise the level of the lot where the house would be placed. Appellants alleged the lack of fill dirt caused water to pool in and around the home.

At the close of the evidence, the court found appellants had breached the contract as a matter of law. Appellants’ counterclaim for damages alleged to result from the failure of respondents to site the house properly on the lot and respondents’ claims for damages and lost profits were submitted to the jury.

The jury returned a verdict in respondents’ favor for appellants’ breach of contract. The jury also, on a separate verdict form, found for appellants on their claim regarding the failure of respondents to site the house properly on the lot; however, the jury did not award any damages to appellants.

[177]*177ISSUE I

Did the trial court err by charging the wrong measure of damages for prevention of contractual performance?

DISCUSSION

Respondents requested the trial court charge the law under Warren v. Shealy, 83 S.C. 113, 65 S.E. 1 (1909), that appellants cannot recover for the costs they incurred to complete the house because they had refused to permit respondents to fulfill their performance of the contract. Appellants objected that the proposed charge would allow respondents to recover the full amount left on the contract when, due to their termination, they had not incurred certain costs. The trial court charged the jury as requested by respondents:

An owner of a building under construction, under a contract providing for payment of the price of the completion of work, who refuses to permit the contractor to complete the work is liable for the contract price less payments made and cannot counterclaim for the amount paid for finishing the building.

Appellants contend the expenses respondents did not incur should be reduced from the claim for the balance of the contract that was due to be paid. Appellants distinguish Warren v. Shealy because that case involved a contract for services only, and not a contract, as here, for services and materials. In Warren, appellants argue, it was appropriate for the non-breaching party to recover the full amount due under the contract because those damages represented profit or unpaid labor, not material costs that otherwise did not occur as a result of performance being prevented.

Appellants’ assessment of Warren v. Shealy is correct. However, the trial court in this case in fact charged exactly what appellants are arguing the court should have charged. The trial court charged that after partially performing a contract, one who is wrongfully prevented from completing the contract may recover actual expenditures and damages for lost profits. The court also charged that the measure of damages for the breach of a contract is the loss actually suffered as a result of the breach. Further, the court charged that respondents’ damages consist of out-of-pocket costs actually incurred [178]*178as a result of the contract and the gain above the costs that would have been realized had the contract been performed. Therefore, appellants’ argument that the trial court failed to charge the correct measure of damages is without merit. See South Carolina Fin. Corp. of Anderson v. West Side Fin. Co., 236 S.C. 109, 113 S.E.2d 329 (1960) (measure of damages for breach of contract is loss actually suffered by contractee as result of breach).

Appellants further assert Warren should not have been charged because the issue of appellants’ counterclaim for the cost to complete the house had been removed from the jury’s consideration. While it may have been unnecessary for the trial court to give the Warren charge, reading the charge as a whole, it is clear the court informed the jury of the correct measure of damages. The charge adequately covered the law of damages resulting from a breach of contract where one party is prevented from completing performance under the contract. We find the jury was not confused or misled by the Warren instruction. See Keaton ex rel. Foster v. Greenville Hosp. System, 334 S.C. 488, 514 S.E.2d 570 (1999) (jury charge correct if when charge read as whole, it contains correct definition and adequately covers law); see also State v. Smith, 315 S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
580 S.E.2d 128, 354 S.C. 173, 2003 S.C. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bensch-v-davidson-sc-2003.