for any of Maguire's costs related to repairing and replacing the fittings. Herbert further argued that Maguire signed a "lump-sum" subcontract under which Maguire was to be paid a set amount of money irrespective of whether there arose the need for Maguire to expend extra labor and money. Herbert therefore contended that it did not breach the subcontract and that it was also justified in ordering a stop-payment on the $ 30,000 check issued to Maguire since payment was conditioned on Maguire completing the project on a specified date, which Maguire failed to do.
Under New York law, a party seeking recovery for breach of contract must show: (1) a contract; (2) performance by the party seeking recovery; (3) breach of the contract by the other party; and (4) damages attributable to the breach. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994).
Maguire thus had the burden at trial to prove by a preponderance of the evidence that it did not breach the subcontract because it performed in a skillful and workmanlike manner; that Herbert breached because the leaks in the fittings were caused by faulty specifications given to Maguire; and, that Maguire was damaged in the amount of $ 250,000 because Herbert breached its promise to pay for the extra repair and replacement work or, at the very least, its promise to pay Maguire $ 30,000.
As to the present motion for judgment as a matter of law, Herbert contends that Maguire failed to meet its burden of proof. In particular, Herbert claims that Maguire's metallurgy expert's testimony was speculative and contradictory regarding Maguire's claim that defective brazing specifications caused the leaks, and that the expert failed to consider whether the quality of Maguire's workmanship could have caused the leaks. Herbert also argues that its alleged promise to pay for the repair work was legally insufficient because there was no consideration since Maguire had a pre-existing duty to perform repairs and pay for the costs of those repairs pursuant to the subcontract. Finally, Herbert argues that Maguire was not alternatively entitled to the $ 30,000 promised for union labor because Maguire never met the condition on which the payment was based.
A. Skilled Workmanship vs. Defective Specifications
Regarding Maguire's skilled workmanship, Maguire presented three witnesses--Maguire's field supervisor, project manager, and shop foreman, each of whom had hands-on oversight of Maguire's workmen during the time period at issue--who testified that Maguire's brazing work was approved by Herbert's agents: (1) Lucius Pitkin ("Pitkin"), a company hired to oversee Maguire's work, which marked "o.k." on each fitting brazed in Maguire's shop before it was shipped to the building for installation;
and (2) Bryan Parrish, an expert brazer hired by Herbert, who observed Maguire's employees as they performed the brazing and who told Maguire's field supervisor that he (Parrish) "wouldn't change a thing" in Maguire's brazing technique.
(Tr. at 147). The project manager also testified about his notes, taken throughout the repair/replacement work, that concerned the work performed by Maguire. According to these notes, on at least three occasions, Stanley Flagg Company (the fitting manufacturer), the Copper Development Association, and Pitkin observed Maguire's brazing work and offered suggestions for brazing that would preclude the occurrence of cracks. The evidence showed that these suggestions were methods for accommodating fittings that were seemingly prone to cracking, rather than methods to improve poor brazing techniques.
Herbert presently contends that only approval of a leak-free completed system, not just the brazing, would have indicated skilled workmanship. Thus, any alleged approval of Maguire's brazing work by Herbert's agents is insignificant. This argument is specious. Herbert cannot make "leak-free" synonymous with "skillful workmanship" because a flawed complete system could be the result of either defective specifications or poor workmanship--the precise issues heard at trial.
Maguire also presented testimony at trial indicating that there were no complaints from Herbert regarding Maguire's brazing either before or after the discovery of the leaks, even when Maguire's technique was reviewed by Herbert's agents. Lastly, Maguire points to the admission at trial by Herbert's brazing expert that the occurrence of leaks can be consistent with good workmanship and a "very good brazing job." (Tr. at 360).
In sum, then, the evidence provided by Maguire, with all inferences drawn in its favor, is clearly sufficient to the support the jury's finding that Maguire's work was skillful.
Regarding the defective specifications, Maguire's metallurgy expert testified that the specifications were defective because the temperature at which Bcup-5, the specified brazing material, melts and flows during the brazing process was too close to the temperature at which the bronze fittings begin to melt. (Tr. at 222-225). He further testified that this situation was compounded by the fact that there were airgaps in the fittings so that it was necessary to apply torch heat at a temperature higher than the melting temperature for Bcup-5 to completely melt and seal the pipes. The increased temperatures exceeded the melting point of the fittings and therefore caused cracks in the fittings in such a way that a leakage path to the outside surface of the fittings resulted. The observed leaks occurred as a result of these leakage paths. (Id.). As a result, the expert concluded that the specifications should have specified a brazing material composed of an alloy that would not cause the temperature problems associated with Bcup-5: the possibility that cracks and leaks would occur from too similar melting points of the braze material and the fittings.
Herbert presently contends that the expert "failed to testify with any degree of certainty that the leaks in fact were caused by the chain of events" described above, (Countercl. Def's Mot. for J. as Matter of Law at 6), because the expert said that he "couldn't confirm or deny" the truth of a report by one of Herbert's witnesses that the leaks were caused by Maguire's poor workmanship, not defective specifications. (Tr. at 210). Herbert also claims that the expert's analysis was scientifically improper because he testified that he reached his conclusion that the specifications were defective without considering whether Maguire properly applied heat to the fittings. (Tr. at 244-46). However, the jury need not have relied solely upon Maguire's expert's testimony in deciding that Maguire was not the cause of the leaks; and the court need not, and cannot, discern whether this was in fact the jury's thinking. The court need only determine whether it was reasonable for the jury to reach such a conclusion and cannot pass on the credibility of the witnesses. Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d at 120. By charging that the expert's testimony was speculative, contradictory, and indicative of poor scientific analysis, Herbert simply assails the credibility of the expert and fails to overcome its burden to show that there was a complete absence of probative evidence to support the jury's verdict regarding the defective specifications and Maguire's workmanship.
B. Herbert's Promise To Pay for the Repair/Replacement Work
At trial, Herbert claimed that it made clear to Maguire that it would not pay for the repair/replacement work until after its agent investigated whether the leaks were caused by Maguire's poor workmanship. Maguire contended that it was promised payment when the leaks were discovered and before Herbert mentioned that it wanted to investigate the leaks. (Tr. at 42, 91).
Herbert now raises the argument that its alleged promise to pay Maguire was legally insufficient because Maguire had a pre-existing duty to perform the repair/replacement work. Thus, there was no consideration for Herbert's promise and it cannot be enforced. See Fafoutis v. Lloyd Lyons, 149 A.D.2d 565, 540 N.Y.S.2d 20, 21 (2d Dept. 1989) ("a promise to comply with a pre-existing legal duty is not adequate consideration upon which a valid contract may be based"). However, because Herbert should have made this argument prior to trial, Herbert has waived the opportunity to do so now. In any event, the argument fails for the following reason.
In examining the sufficiency of the alleged promise, the court, ordinarily, would examine whether Herbert and Maguire had covenanted to perform pre-existing obligations once the leaks were discovered; in other words, did both parties do or promise to do something in addition to their pre-existing duties? See e.g., Care Travel Co., Ltd. v. Pan American World Airways, Inc., 944 F.2d 983, 990-91 (2d Cir. 1991). Under the contract, Maguire had the obligation to perform all work specifically set forth in the contract
as well as any and all work incident or related thereto, including but not limited to that work reasonably necessary for a complete and proper Project, or which is necessary to have a properly working and totally acceptable system and Project.
§ 3.1, Subcontract Agreement, Exh. B, Countercl. Def.'s Mot. for Judgment as Matter of Law. Section 9.4 of the Subcontract Agreement also provides that:
The Subcontractor shall, within 24 hours after receiving specific written notice from the Contractor, commence to take down and remove any designated portion of its work which is condemned, disapproved, or is questioned as not being in strict compliance and conformity with the requirement of this Contract . . . The Subcontractor shall promptly, at its own expenses, correct and rectify same. (emphasis added).