Constantino v. American S/T Achilles

580 F.2d 121

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 20, 1978
• Docket: Nos. 77-1211, 77-1212
• Status: Published

Opinions

WIDENER, Circuit Judge.

On March 8, 1976, defendant Newport Tankers Corporation contracted with plaintiff Dan Constantino, trading as Constantino’s Company, for the cleaning of grain storage tanks in Newport’s ship, the American S/T Achilles. The contract terms fixed the price at $30,000 and required completed performance by March 17,1976. Constantino was unable to complete the cleaning by March 17, but with the defendant’s permission continued work until March 25, 1976, when Newport terminated Constantino’s services. Constantino subsequently brought this suit against the Achilles and Newport, demanding $69,863.50 as damages for the alleged breach of contract.

At trial the district court found that the parties had agreed to extend the time for Constantino’s performance, and that Newport breached the contract as extended when it ordered Constantino to leave the vessel on March 25. Although there was evidence that Constantino’s work was of poor quality, the court found that Newport permitted the extension because of the comparatively low cost of the cleaning contract. The court further found that the reason for Newport’s breach was union objection to Constantino’s non-union operation.

In determining the damages due Constantino for the breach of contract, the district court decided that basing recovery upon a theory of quantum meruit was “as close and as accurate as we are going to be able to get . . ..” Because Constantino had cleaned twenty-four of the thirty-three tanks on the Achilles prior to the breach, the court calculated damages as twenty-four thirty-thirds (^/ss) of the contract price of $30,000, less sums already paid to the plaintiff by Newport, and entered judgment for plaintiff in the amount of $7,818.16. Both parties appeal.

Newport assigns as error only the finding of the district court that the parties agreed to permit Constantino an extension of time in which to complete his performance. The district court, however, acting as the trier of fact made this finding after full presentation of evidence by the parties, and we uphold the finding as not clearly erroneous. FRCP 52(a).

Constantino on his cross-appeal asserts that, as a matter of law, the district court erred in its quantum meruit determination of the amount of damages by calculating damages with reference to the original contract price. Again, however, we are of opinion the district court committed no reversible error. The authorities are divided on the issue of whether the contract price sets a limit upon a recovery in quantum meruit. See, e. g., Williston on Contracts § 1485 (Jaeger ed. 1970); D. Dobbs, Law of Remedies § 12.24 (1973). Williston opines, § 1485 at 312, that cases limiting recovery to the contract price as a matter of law “are opposed to sound principle,” but in the same section at p. 309-10 gives a concurrent opinion, quoting Wellston Coal Co., n. 2, infra, the plaintiff should not recover when “ ‘he would have necessarily lost more by performing the contract for the consideration agreed upon, than he did by being prevented from doing so.’ ” Dobbs, § 12.24 at 916, states that “[t]he choice between the rule limiting the contractor to the contract rate and the rule allowing him the full ‘value’ of his work without limit is a difficult one.”

The district court did not state which theory of quantum meruit it adopted in determining Constantino’s recovery. Because in our view the amount of the award was permissible under either theory, we need not decide whether in suits in admiralty the contract price sets a limit on the plaintiff’s right to recover, see Williston, § 1485; Dobbs, p. 915, et seq.¹ Since the contract price unquestionably is probative in ascertaining damages in quantum meruit, United States v. Algernon Blair, Inc., 479 F.2d 638, 641 (4th Cir. 1973); Williston § 1485 at 306, we cannot say the district court abused its discretion in relying upon admittedly admissible evidence as the measure of Constantino’s recovery. Given the deference an appellate court owes the trier of fact, and the equitable considerations that necessarily enter into a determination of damages based on quantum meruit,2 we affirm the award.

Constantino also argues on his cross-appeal that the district court erred by not awarding him the costs ordinarily due the prevailing party. FRCP 54(d). While the trial court exercises considerable discretion in the taxing of costs under Rule 54(d), no reason is called to our attention for the district court’s departure from the normal practice, and the district court gave none. Accordingly, we vacate the district court’s order denying costs to Constantino, and remand for entry of judgment in Constantino’s favor for that item.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

1 . In United States v. Algernon Blair, Inc., 479 F.2d 638, 641 (4th Cir. 1973), this court stated that, in a suit under the Miller Act, the contract price does not limit the plaintiffs recovery. In Blair, however, unlike our case, the district court had denied recovery to the plaintiff because the plaintiff would have lost more by performing. See Williston, p. 309-10, supra. In the case before us, the district court did not deny recovery; all it did was to fix the damage.

2 . Although the remedy of quantum meruit was established by the common law, equitable considerations inextricably enter into the fact finder’s determination of damages. See Williston on Contracts, § 1485 at 307, quoting Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St. 182, 48 N.E. 888, 889 (1897).