Seymour v. New Hampshire Savings Bank

561 A.2d 1053, 131 N.H. 753, 1989 N.H. LEXIS 65
CourtSupreme Court of New Hampshire
DecidedJuly 13, 1989
DocketNo. 88-141
StatusPublished
Cited by17 cases

This text of 561 A.2d 1053 (Seymour v. New Hampshire Savings Bank) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seymour v. New Hampshire Savings Bank, 561 A.2d 1053, 131 N.H. 753, 1989 N.H. LEXIS 65 (N.H. 1989).

Opinion

Souter, J.

After a bench trial in the Superior Court {Mangones, J.), the plaintiffs appeal from an unfavorable verdict rejecting claims that the defendant violated contractual and fiduciary duties in failing to guard against unworkmanlike performance of a construction contract financed by the defendant’s mortgage loan to the plaintiffs. We affirm.

In 1983, the plaintiffs, Ross and Virginia Seymour, decided to divide their house into three apartments, and on the advice of an independent appraiser they considered hiring one Warren Dobbins to do the work. When Mrs. Seymour first spoke to an officer of the defendant, New Hampshire Savings Bank, about the possibility of a loan to finance the project, he advised her to get two cost estimates and mentioned another contractor, named Stevens. The plaintiffs obtained estimates from each builder, Dobbins’s being the [755]*755lower by $5000. When Mrs. Seymour mentioned to a second loan officer of the bank that she and her husband were considering Dobbins for the job, the loan officer replied that Dobbins enjoyed a fine reputation and had done some good work that the officer had seen.

In January, 1984, the bank granted the Seymours’ application for a construction loan, and on March 19, 1984, the Seymours executed the required documents. They signed a note for a principal of $46,500, a mortgage, and a “Borrowers and Lenders Agreement” (B & L), and they received a copy of the bank’s “Construction Loan Disbursement Policy” (Disbursement Policy). On April 3, the Seymours executed a contract with Dobbins for the conversion work, the scope of which was left largely to understandings informally expressed, there being no written time-table for its execution, save for a completion date, and no written plans or specifications of its details.

Insofar as the loan documents bear on the instant action, they can be reviewed briefly. The B&L agreement provided that the Seymours would “institute [the] construction work and carry the same to completion in a workmanlike manner on or before October 19, 1984” and would apply the loan’s proceeds to “said purposes.” They agreed to make prompt payment of all bills for work done, to furnish the bank with receipts and to keep the bank informed about the progress of the work. The parties agreed that the bank’s disbursements of proceeds would “be conditioned upon receipt of evidence satisfactory to the Bank that . . . said work is being conducted in a workmanlike manner, [and that] the amounts theretofore loaned by the Bank have been applied toward said work . . . .” The Disbursement Policy required the Seymours to execute an “Authorization to Withdraw” form, to be presented to the bank at least three business days prior to any requested disbursement from the loan account. The bank charged the Seymours a $25 “inspection fee,” to which the Disbursement Policy referred in its provision that the “inspection fee covers four inspections during the construction phase. Inspections will be made at the discretion of the Bank and if additional inspections are necessary, the Bank will charge a fee of $25 for each additional inspection.” The subject of inspection was also addressed by the mortgage provision that the bank might make “reasonable entries upon and inspections of the Property, provided that [the bank] shall give [the Seymours] notice prior to any such inspection specifying reasonable cause therefor related to [the bank’s] interest in the Property.”

[756]*756Although the Seymours authorized three disbursements to Dobbins, when he made his fourth request for payment in early July 1984, they hesitated to approve it, out of misgivings about the quality of some of his work and the time he was taking to do it. When Dobbins told them he was about to start a new job, the Seymours voiced their apprehension to a vice president of the bank and asked when the bank intended to inspect the work. He replied that there would be only one inspection, at the completion of the project, given Dobbins’s good reputation. The Seymours then asked whether they should honor Dobbins’s latest statement. The bank officer replied that since the Seymours themselves indicated Dobbins had been working on the project and was presumably owed something, he would advise them to pay. They authorized the further disbursement, bringing the total to $24,500.

When they gave Dobbins his check on July 6, the Seymours expressed their concerns and received his reassurance. Thereafter, the Seymours presented a fifth disbursement authorization to the bank and paid another $2,630.89 to Dobbins on July 13.

Dobbins’s next statement came on August 6, but this time Mrs. Seymour refused the request until he corrected certain work thought to be defective and furnished a schedule for completion of the project. Dobbins did neither, but promptly left with his employees and materials. In the aftermath of his departure a bank inspector noted that “[w]ork has not been performed in a professional and workmanlike manner.” The Seymours hired one Butler to complete the job, to whom they authorized seven disbursements by the bank.

The Seymours then separately sued Dobbins, who settled for $4,000, and the bank, which obtained a defendant’s verdict after a full bench trial. In this appeal, the Seymours espouse theories of contractual obligation and fiduciary duty, on which they maintain that the trial court should have held the bank liable both for the disbursement of loan proceeds compensating Dobbins’s allegedly inadequate performance, and for the costs of remedial work and delay in renting the apartments.

The claim that the bank had a contractual duty to inspect on the plaintiffs’ behalf, and to guard them from poor workmanship, is said to rest on provisions found in three of the documents already summarized. The B&L agreement requires evidence of workmanlike construction and of application of prior payments to the project as a condition of the bank’s obligation to disburse funds, and the plaintiffs point to the mortgage provision entitling the bank to inspect, as well as to the Disbursement Policy’s explanation that [757]*757the inspection fee covers four inspections. They argue that they were thus entitled to infer that the bank would guard their interest by inspecting the construction to ensure its quality and to verify the application of the disbursements to the job at hand.

If this argument has any plausibility, however, it depends on ignoring the cardinal rule that each contractual instrument is to be read as a whole, Kilroe v. Troast, 117 N.H. 598, 601, 376 A.2d 131, 133 (1977), for when the provisions isolated above are returned to context, any implication of contractual duty disappears. It will be recalled that the Disbursement Policy spoke of the bank’s inspection or inspections as discretionary, while the mortgage expressly conditioned the bank’s right of entry for inspection upon demonstrating reasonable cause related to the bank’s interest in the property, not to the Seymours’ interest. Most telling of all, of course, was the Seymours’ undertaking in the B&L agreement to “institute [the] construction and carry the same to completion in a workmanlike manner . . . .” Thus, as between the Seymours and the bank, the Seymours expressly assumed responsibility for workmanlike quality, an obligation underscored by the bank’s right to insist on “evidence satisfactory to the Bank that . . . [the] work is being conducted in a workmanlike manner, [and that] the amounts theretofore loaned . . . have been applied toward said work . .

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Cite This Page — Counsel Stack

Bluebook (online)
561 A.2d 1053, 131 N.H. 753, 1989 N.H. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seymour-v-new-hampshire-savings-bank-nh-1989.