Kidwell & Kidwell, Inc. v. WT Galliher & Bro., Inc.

282 A.2d 575, 1971 D.C. App. LEXIS 216
CourtDistrict of Columbia Court of Appeals
DecidedOctober 20, 1971
Docket5731
StatusPublished
Cited by7 cases

This text of 282 A.2d 575 (Kidwell & Kidwell, Inc. v. WT Galliher & Bro., Inc.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kidwell & Kidwell, Inc. v. WT Galliher & Bro., Inc., 282 A.2d 575, 1971 D.C. App. LEXIS 216 (D.C. 1971).

Opinions

PAIR, Associate Judge:

This appeal challenges a judgment entered for the appellees in an action for breach of contract. Appellant was a subcontractor for certain plastering and related work at premises 317 — 10th Street, S. E. The premises was owned by appellee Harry Sullivan, with whom Town and Country, Inc., was the general contractor for the construction of a dwelling. Appel-lee W. T. Galliher & Bro., Inc., (hereinafter referred to as “Galliher & Bro.”), supplied building materials for purposes of the improvement.

The action below was commenced with a complaint alleging that appellees, by their several promises to protect appellant’s interest in the construction funds, induced appellant to give up and forego its right to file a mechanic’s lien against the property.1 Answering the complaint, appellees denied that they had made any such promise and denied also the liability alleged.

Trial was without a jury and at the close of all the evidence, the court, after finding that appellant had performed the work as alleged and that no question had been raised as to the quality of the work, entered judgment for each appellee, ruling that the communications between appellant and appellees did not give rise to a contract because there was no meeting of the minds and no consideration.

As a general rule, the findings of the court in a case tried without a jury may not be disturbed on appeal unless clearly erroneous. Drazin v. Jack Pry, Inc., D.C.Mun.App., 154 A.2d 553 (1959). Under the rule, a finding is clearly erroneous when although there may be some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Voight & McMakin Air Con., Inc. v. Property Redev. Corp., D.C.App., 276 A.2d 239, 241 (1971); Spargnapani v. Wright, D.C.Mun.App., 110 A.2d 82 (1954). So it is here and we reverse.

The record discloses no substantial dispute as to the facts. Appellant entered into the subcontract for the plastering and related work on December 13, 1967. Having completed the work, appellant, on February 9, 1968, forwarded by certified mail to each appellee a letter, identical in form and context, which, with the acknowledgment made on the face thereof, reads:

Re: 317 10th Street, S.E. Washington, D.C.
Gentlemen:
This letter is to officially inform you that on the above referenced job we have a balance due on our plaster subcontract with Town & Country Builders, of $925.00. I have, personally, spoken with Mr. Sharkey2 in reference to this [577]*577amount due and he has informed me that if I do not file a lien immediately for the balance, he will try and remit same by Friday, February 16, 1968.
Should he fail to remit this balance, we hereby notify you that we will file a Mechanic’s Lien against this property. I would appreciate personally, if you would acknowledge below that you will not endorse any check representing final disbursement of construction funds for this job without seeing that the balance due us of $925.00 is paid or protected.
******
I hereby agree not to endorse final disbursement of the construction funds for this job without protecting the $925.00 due to Kidwell & Kidwell, Inc. for the plastering subcontract work which has been completed.

The acknowledgment made on the letter addressed to appellee Galliher & Bro. was signed “Claude R. Smith, Authorized Agent,” and that made on the letter addressed to appellee Sullivan was signed “Harry R. Sullivan, Owner.”

A similar letter was sent to Perpetual Building Association from which appellee Sullivan borrowed the construction money, but it does not appear that the requested acknowledgment was ever made.

Sometime thereafter the general contractor abandoned the construction of the dwelling and appellee Sullivan took over as his own general contractor and finally completed the improvement on June 26, 1968.

According to the Statement of Proceedings and Evidence, subsequent to the acknowledgments made by appellees on appellant’s letters of February 9, 1968, each appellee endorsed at least one check drawn ón the construction funds. In this connection the testimony of Claude R. Smith, who signed the acknowledgment on behalf of Galliher & Bro., was that the check for the final draw of more than $1,000 was endorsed by mistake while he was on vacation and that, had he not been on vacation, he would have held the money for appellant.

The testimony of appellee Sullivan was that he endorsed checks drawn on the construction funds at Perpetual, one to Town and Country, Inc., in the sum of $316 for the removal of a tree, and other checks to himself as general contractor since “it was required that he complete the building as the general contractor subsequent to February 9, 1968.”

Having recited the facts upon which the trial court based its findings, the contentions of the parties are brought into proper perspective so that we are now in position to consider and dispose of the assignments of error.

The substance of appellant’s contentions is that the trial court erred in holding that appellees, by their acknowledgments on the letters of February 9, 1968, made no binding agreement to protect appellant’s interest in the balance of the construction funds.

At the outset we notice a fact, apparent in the record, that when appellees made such acknowledgments, appellee Sullivan and Claude R. Smith and Charles E. Gal-liher, officers of Galliher & Bro., had a very real and vital concern that no mechanic’s lien be filed against the property.3 They must have known, as indicated in appellant’s letter, that Town and Country, Inc., the general contractor, was at that time in default and was unlikely to complete the improvement by February 25, 1968, the completion date. Under the cir[578]*578cumstances, the conclusion seems compelled that appellees, by their acknowledgments made on the letters of February 9, 1968, intended to obtain the very advantage which flowed from appellant’s forbearance to file a mechanic’s lien.

Appellees, while apparently conceding that appellant was disadvantaged by its forbearance, insist nevertheless that no such forbearance was at any time requested or bargained for. It is, however, undisputed that each appellee acknowledged to appellant that :

I hereby agree not to endorse final disbursement of the construction funds for this job without protecting the $925.00 due * * * for the plastering and subcontract work which has been completed.

These acknowledgments, when read in the context of appellant’s letters of February 9, 1968, disclose, in the opinion of this court, the very essence of the bargaining process, even though not conducted in the niceties of legal terminology.

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Kidwell & Kidwell, Inc. v. WT Galliher & Bro., Inc.
282 A.2d 575 (District of Columbia Court of Appeals, 1971)

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Bluebook (online)
282 A.2d 575, 1971 D.C. App. LEXIS 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kidwell-kidwell-inc-v-wt-galliher-bro-inc-dc-1971.