Winey v. William E. Dailey, Inc.

Annotate this Case
WINEY_V_WILLIAM_E_DAILEY_INC.91-559; 161 Vt. 129; 636 A.2d 744

[Filed 05-Nov-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                No. 91-559


 Lee Winey                                    Supreme Court

                                             On Appeal from
     v.                                      Bennington Superior Court

 William E. Dailey, Inc. & Richard &          May Term, 1993
 Deborah Cutler, d/b/a/ Cutler
 Construction Co.; and Ray &
 Scott Racicot


 Theodore S. Mandeville, Jr., J.

 David Putter of Saxer, Anderson, Wolinsky and Sunshine, Montpelier, and
  Lee Winey, pro se, Shaftsbury, for plaintiff-appellee

 Michael B. Clapp of Dinse, Erdmann & Clapp, Burlington, for defendant-
  appellant


 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Peck, J. (Ret.),
          Specially Assigned


     DOOLEY, J.   This action arises out of the construction of a home for
 plaintiff, Lee Winey, in the Town of Shaftsbury.  Alleging breach of
 contract, fraud and consumer fraud, she sued the foundation contractor,
 William E. Dailey, Inc.; the general contractor, Cutler Construction
 Company, along with owner Richard Cutler and his wife, Deborah Cutler; and
 the plumbing, heating and electrical contractors.  The case went to trial
 against the foundation and general contractors and resulted in a plaintiff's
 verdict for $70,000 against each defendant on the breach of contract
 theories.  The jury also awarded $3,628 to the general contractor pursuant
 to a counterclaim for unpaid bills.  Defendant Richard Cutler has appealed

 

 the verdict against him, alleging an error in the jury charge and that the
 amount of the verdict is not supported by the evidence.  Plaintiff has
 cross-appealed, alleging with respect to Richard Cutler that the trial court
 erred in directing a verdict against her on her fraud-in-the-inducement
 claim and her similar consumer fraud claim, in its instructions on consumer
 fraud, and in its failure to award prejudgment interest.  She also claims
 that the court erred in granting a directed verdict for Deborah Cutler.  We
 affirm in part and reverse and remand in part.
      For purposes of this opinion, we will refer to Richard Cutler and
 Cutler Construction Company as defendant.  The construction business was not
 incorporated.  Plaintiff alleged that it was a partnership or joint venture
 of Richard and Deborah Cutler.  Richard Cutler argued that it was a sole
 proprietorship owned by him.  The proper characterization of the business is
 relevant to the potential liability of Deborah Cutler.
      Plaintiff and defendant entered into a written agreement on August 14,
 1984 for defendant to serve as general contractor to build a house for
 plaintiff in accordance with certain blueprints.  The anticipated completion
 date was March 10, 1985.  The contract contained a provision that allowed
 plaintiff to terminate it if defendant's billing rose above $215,000.  It
 provided defendant a contractor's fee of $20,000 and required defendant to
 bill for material and subcontractor payments at cost.  It also required
 plaintiff to reimburse for wages paid by defendant and set forth a wage rate
 by type of workers on the job.
      When defendant's billings reached almost $300,000, plaintiff exercised
 her right to terminate the contract.  Defendant had about $25,000 worth of
 work to do to complete the house.

 

      Four breach of contract theories were submitted to the jury:  (1)
 defendant failed to perform in accordance with the plans and specifications,
 and any authorized changes; (2) defendant failed to ensure that all labor
 and materials were of good quality; (3) defendant overbilled for labor and
 materials; and (4) defendant billed for labor and materials not used in the
 house construction.  The jury found that defendant had breached the contract
 by deviating from plans and specifications, overbilling for labor or
 materials, and billing for labor or materials not used on the job.  It found
 defendant did not fail to provide good quality labor and materials.
      Certain fraud and consumer fraud claims also went to the jury.
 Plaintiff alleged that defendant had defrauded her by charging her for labor
 and materials not expended in the construction of the house and in
 overstating the cost of labor and materials.  Plaintiff's consumer fraud
 claim was based upon the same allegations, and, additionally, that defendant
 had concealed deviations from specifications and construction done in a
 defective and unworkmanlike manner.  The jury found for defendant on the
 fraud and consumer fraud claims.
                                     I.
                                     A.
      We first address plaintiff's arguments that despite the verdict in her
 favor, she is entitled to a new trial on her fraud and consumer fraud claims
 and her claims against Deborah Cutler.  First, plaintiff alleges that the
 court erred in failing to submit to the jury her fraud-in-the-inducement
 claim.  Her claim was that defendant told plaintiff that he would complete
 the house for $215,000, exclusive of the cost of the foundation, although he
 personally believed he would charge her $270,000 plus the price of the
 foundation.  She testified that she relied on the estimate in deciding to

 

 hire defendant.  The trial court refused to charge this theory because it
 found no evidence that defendant made a knowing misrepresentation of his
 estimate.
      Plaintiff's claim to recovery on this theory is grounded in her
 position that misrepresentation of a construction estimate is actionable in
 these circumstances.  Our cases have often drawn a distinction between a
 statement of fact and a statement of opinion, holding that misrepresentation
 of the former can be fraud, but misrepresentation of the latter cannot.  See
 Proctor Trust Co. v. Upper Valley Press, Inc., 137 Vt. 346, 350, 405 A.2d 1221, 1224 (1979) ("mere expressions of opinion" cannot be basis for fraud
 action).
      This generalization is not, however, without exceptions.  Misrepresent-
 ation of opinion can be the basis of a fraud claim if it is part of a scheme
 to defraud.  See White v. Pepin, 151 Vt. 413, 419, 561 A.2d 94, 98 (1989).
 Plaintiff has alleged such a scheme here.  She has claimed that defendant
 intentionally "low balled" the estimate in order to induce her to hire him.
 Once hired, he knew that she would be required to pay much more to complete
 the house and was unlikely to stop construction work before completion.
      Another exception also applies.  With respect to promises to perform,
 we have held that misrepresentations about future actions can be fraudulent
 if defendant, at the time of the statement, intends to act differently from
 the promise.  See Union Bank v. Jones, 138 Vt. 115, 121, 411 A.2d 1338, 1342
 (1980).  A similar theory applies to opinions.  The Restatement (Second) of
         Torts states the principle as follows:
              A representation of the state of mind of the maker or
           of a third person is a misrepresentation if the state of
           mind in question is otherwise than as represented.
           Thus, a statement that a particular person . . . is of a
           particular opinion or has a particular intention is a

 

           misrepresentation if the person in question does not
           hold the opinion or have the intention asserted.

 Restatement (Second) of Torts { 525 comment c (1977).  In this case,
 plaintiff alleged that defendant had a firm opinion about the cost of
 constructing the house but he intentionally stated an opinion $55,000 less
 in order to induce plaintiff to hire him.  In such circumstances, a
 misrepresentation of defendant's opinion can be actionable.
      Defendant argues, however, that there is no factual basis for
 plaintiff's allegation.  Since the trial court granted a directed verdict
 against plaintiff, in addressing this question, we must view the evidence in
 the light most favorable to plaintiff, excluding any modifying evidence.
 See Marchelewicz v. Wehner, ___ Vt. ___, ___, 618 A.2d 1293, 1294 (1992).
      Plaintiff testified that defendant Richard Cutler told her that the job
 could be completed for $215,000 plus the cost of the foundation, and they
 modified some of the specifications to get down to that figure.  Further,
 she testified that the right to terminate when bills reached $215,000 was
 inserted in the contract as a result of the estimate.  She stated that she
 would not have entered the contract had she known the price would exceed
 $215,000.
      Richard Cutler testified that he believed, at the time he entered the
 contract, that the price for his work would be $270,000.  He did not provide
 an estimate for that amount to plaintiff.
      Defendant relies on a number of worksheets that were exhibits and, in
 his view, reconciled the different numbers.  The worksheets are ambiguous,
 and, in any event, are modifying evidence, which is not considered in
 ruling on a directed verdict motion.  Viewing the evidence in the light
 most favorable to plaintiff, there was sufficient evidence to support her

 

 fraud-in-the-inducement theory, and it should have been submitted to the
 jury.
                                     B.
      Plaintiff restates her argument under a consumer fraud theory.  The
 Vermont Consumer Fraud Act prohibits "unfair or deceptive acts or practices
 in commerce," 9 V.S.A. { 2453(a), and authorizes the consumer to recover
 damages caused by the violation.  Id. { 2461(b).  The Act provides "a much
 broader right than common law fraud."  Poulin v. Ford Motor Co., 147 Vt.
 120, 124, 513 A.2d 1168, 1171 (1986).  Thus, plaintiff need only show that
 there was a representation likely to mislead her, that she interpreted it
 reasonably under the circumstances and that the misleading nature of the
 representation was likely to affect her conduct or decision with respect to
 the contract.  See Peabody v. P.J.'s Auto Village, Inc., 153 Vt. 55, 57, 569 A.2d 460, 462 (1989).  Plaintiff's case, if accepted by the jury, met this
 standard.  We note that courts in other states with similar statutes have
 reached the same conclusion on comparable fact patterns.  See Quate v.
 Caudle, 381 S.E.2d 842, 845 (N.C. Ct. App. 1989); Eastlake Constr. Co. v.
 Hess, 686 P.2d 465, 476 (Wash. 1984).  The court erred in failing to submit
 this consumer fraud theory to the jury. (FN1)
                                     C.
      Plaintiff's third claim is that the court erred in charging the jury on
 the consumer fraud theories that were submitted to the jury.  The court
 submitted to the jury the following consumer fraud theories: (a) defendant
 intentionally charged for labor and material not used in the project; (b)

 

 defendant intentionally overcharged for labor and materials; (c) defendant
 concealed construction done in a defective and unworkmanlike manner; and (d)
 defendant concealed construction done in a manner that deviated from the
 specifications.  The court instructed the jury on the general elements of
 consumer fraud and stated that it could find liability on any of the
 theories for which the elements were met.
      Plaintiff argues that the court should have instructed on a statutory
 presumption that she believes applies to this case.  The statute, titled
 "Evidence of Fraud," provides:
                        The failure to sell any goods or services in the
                   manner and of the nature advertised or offered, or the
                   refusal or inability to sell any goods or services at
                   the price advertised or offered or in accordance with
                   other terms or conditions of the advertisement or offer,
                   creates a rebuttable presumption of an intent to violate
                   the provisions of this chapter.  No actual damage to any
                   person need be alleged or proven for an action to lie
                   under this chapter.

 9 V.S.A. { 2457.  Plaintiff argues the presumption applies to her claim that
 defendant overcharged for certain labor and materials, charged for labor and
 materials not used on the job and substituted inferior materials.  In each
 case, plaintiff claims that defendant failed to sell goods or services in
 the manner and nature in which they were advertised and offered.
      For purposes of analysis, we will assume that it is proper to charge
 the jury on the presumption when the issue of whether defendant engaged in
 unfair or deceptive practices is disputed in the evidence.  See V.R.E.
 301(c)(3); Estate of Raedel, 152 Vt. 478, 483 n.3, 568 A.2d 331, 333 n.3
 (1989).  In interpreting the statute, we look to its whole and to every part
 of it, its subject matter, the effects and consequences and the reason and
 spirit of the law.  See Mabee v. Mabee, ___ Vt. ___, ___, 617 A.2d 162, 163-
 64 (1992).

 

      We believe that the statute is narrower than plaintiff's reading.  It
 is concerned with the contents of advertisements and offers -- that is,
 elements of contract formation -- and not conduct that is in breach of an
 existing contract.  We have cautioned against confusing principles of
 contract with principles of fraud so that the elements of fraud are made out
 by a mere breach of contract.  See Bevins v. King, 147 Vt. 203, 204-05, 514 A.2d 1044, 1045-46 (1986).  Similarly, we are reluctant to conclude that the
 Legislature intended a mere breach of contract to raise a presumption of
 fraud.
      Further, the last sentence of { 2457 indicates that the Legislature was
 concerned with circumstances in which there are no actual damages to a
 consumer.  That language is important because, when the statute was enacted,
 the Consumer Fraud Act allowed only public enforcement by the Attorney
 General and not a private cause of action by the consumer.  See 1967, No.
 132, { 1 (adding 9 V.S.A. {{ 2457, 2461).  The language of the statute
 addresses the classic bait-and-switch technique by which a seller induces
 consumer interest with an attractive offer and switches to other
 merchandise or terms, considerably less advantageous to the consumer.  See
 Federal Trade Commission, Guides Against Bait Advertising, 16 C.F.R. {{
 238.0-.4.  In such instances, the damage to the consumer, if any, consists
 of the loss of a purchase opportunity of uncertain value.  In enacting the
 presumption, the Legislature intended the statute to cover such conduct
 despite the absence of direct consumer injury.
      For these reasons, we do not believe that { 2457 applies to
 defendant's billing practices in an ongoing contract even if he overbilled,
 or billed for improper work, as plaintiff argued.  There was no error in
 refusing to charge the statute.

 

      Plaintiff also faults the jury instruction for its failure to tailor
 the discussion of consumer fraud to the individual facts and claims in the
 case.  Defendant argues that plaintiff failed to preserve this claim.  We
 agree with defendant.
      The trial court conducted a two-day charge conference, the transcript
 of which is over 300 pages in length.  Every word of the charge was debated
 in detail.  At the end of the conference, the court asked for objections to
 the charge.  Plaintiff's counsel made numerous specific objections, but did
 not object to the lack of detail in the consumer fraud charge.  He concluded
 with an objection to language on "multiple counts," stating:
          And we have stated our basis yesterday.  I won't
          reiterate it now, but I do want to reincorporate now all
          the arguments I made on those various points and I won't
          waste the Court's time further.

 After the charge was given, the court declared that all prior objections
 were preserved and did not have to be repeated.
      Civil Rule 51(b) requires a party to object "before the jury retires to
 consider its verdict, stating distinctly the matter objected to and the
 grounds of the objection."  The purpose of this requirement is to give the
 trial judge a last opportunity to correct the charge before the jury
 retires.  See Martell v. Universal Underwriters Life Ins. Co., 151 Vt. 547,
 553, 564 A.2d 584, 588 (1989).  We have criticized the trial court practice
 of declaring former objections as preserved because it eliminates the second
 look to catch errors.  Deyo v. Kinley, 152 Vt. 196, 204 n.4, 565 A.2d 1286,
 1291 n.4 (1989).  More recently, in relation to the similar criminal
 procedure rule, V.R.Cr.P. 30, we stated:

                   In this case, . . . the court, after instructing the
                   jury, told the parties that any objection made before
                   the jury charge would be considered preserved.  We
                   shall, therefore, reach the issue, but caution that such
                   advice is contrary to the rule, and the court should

 

                   require that any objections be placed on the record
                   after the charge is given to the jury.  The primary
                   reason for the rule is to give the trial court one last
                   opportunity to avoid an error.  In addition, our review
                   is made easier by such a practice because objections
                   during a charge conference often are vaguely worded and
                   are interspersed during lengthy discussion. . . .  By
                   requiring post-charge objections, counsel is forced to
                   focus on a succinct recitation of specific itemized
                   objections enabling this Court to understand what
                   defendant intended to preserve for appeal.

 State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992).  The
 discussion is equally applicable in civil cases.
      Plaintiff argues that the general objection made after the charge
 conference operated to properly preserve for review all of the issues raised
 during the two-day charge conference.  We reiterate that we do not believe
 that a blanket reference made after the charge to arguments made before the
 charge, even if allowed by the trial court, complies with Civil Rule 51(b).
 We certainly do not accept the theory that such a blanket reference can
 cover another blanket objection to hundreds of pages of difficult-to-follow
 argument.  As it is, we do not read the statement in question as making a
 blanket reference in this case.  Plaintiff failed to object "distinctly" to
 the lack of specificity in the consumer fraud charge and to state the
 grounds of the objection.  She cannot now challenge the charge in this
 Court.  See Poulin v. Ford Motor Co., 147 Vt. at 125, 513 A.2d  at 1173.
                                     D.
      Plaintiff's fourth claim is that the trial court erred in giving a
 directed verdict to Deborah Cutler on all counts.(FN2) Plaintiff argues pro 
 se (FN3)

 

 that Deborah Cutler should be liable on all theories because the evidence
 showed that she was engaged in a joint venture with her husband.
      Although defendant did business as Cutler Construction Company, the
 evidence showed that the business was a sole proprietorship owned by Richard
 Cutler.  The written contract for the construction of the house was between
 plaintiff and Richard Cutler, doing business as Cutler Construction Company,
 and it was signed only by Richard Cutler.  It provided an hourly rate for
 Richard Cutler when he was on the job, and obligated him to be on site a
 specific number of hours.
      Plaintiff points to the involvement of Deborah Cutler in the business.
 The evidence, viewed in the light most favorable to plaintiff, showed that
 contract negotiations and signing took place in the Cutler home with
 Deborah Cutler providing "disarming, gracious hospitality."  Deborah worked
 for the business, without compensation, as a bookkeeper.  She paid bills and
 billed plaintiff for work and materials.  The overbillings and billings for
 labor and material not expended on the job were prepared by Deborah Cutler.
 She assembled cost figures that Richard Cutler used as the basis for his
 quote to plaintiff.
      A wife is not normally liable for breach of a contract by her husband
 unless she is a party to that contract.  See R. & E. Builders, Inc. v.
 Chandler, 144 Vt. 302, 304-05, 476 A.2d 540, 542 (1984).  She may be liable
 for fraudulent action if she is involved in it and benefits from it.  See
 Fireman's Fund Ins. Co. v. Knutsen, 132 Vt. 383, 396, 324 A.2d 223, 232
 (1974).  In this case, however, the jury found against plaintiff on her

 

 fraudulent billing theories, and this finding necessarily exonerated Deborah
 Cutler.
      Thus, plaintiff is left with the theory that Deborah Cutler was a joint
 venturer in the Cutler business.  A joint venture is a special relationship
 of two or more parties "'to engage in and carry out a single business
 venture for joint profit.'"  Vermont Envtl. Bd. v. Chickering, 155 Vt. 308,
 317, 583 A.2d 607, 612 (1990) (quoting Helfenbein v. Barae Inv. Co., 508 P.2d 101, 104 (Ariz. Ct. App. 1973)).  Although not a formal partnership, it
 has many of the legal incidents of a partnership.  See Mislosky v. Wilhelm,
 130 Vt. 63, 69, 286 A.2d 267, 271 (1971).  Thus, there must be an agreement
 to share in profits and losses, joint control or right to control, a joint
 proprietary interest in the subject matter and a community of interest in
 the performance of the common purpose.  See 2 Z. Cavitch, Business
 Organizations { 41.05[1] (1993).  The evidence falls short of reaching the
 level of necessary involvement by Deborah Cutler in Cutler Construction
 Company and thus the grant of a directed verdict in her favor on the joint
 venture theory was proper.
      Plaintiff's counsel offers an alternative theory that attempts to hold
 Deborah Cutler liable for part of the damages.  This argument focuses on the
 jury's verdict that the breach of contract damages included $3,000 for
 overcharges for labor and material and $500 for labor and material not
 expended on the job.  It relies on the fact that Deborah Cutler prepared
 these bills.  She also had the power to withdraw money from the business
 account and did so periodically to pay household expenses.  From these
 facts, plaintiff's counsel argues that plaintiff should have been able to
 recover the $3,500 from Deborah Cutler on a theory of restitution based on
 unjust enrichment.

 

      Although labeled as breach of contract damages, these amounts were
 actually restitution damages.  See 5 Corbin on Contracts { 1107, at 573
 (1964).  The issue is whether plaintiff's theory of unjust enrichment is
 sufficient to allow recovery from Deborah Cutler.  When a person receives
 money to which another person "'in justice and good conscience is
 entitled,'" the law creates an implied promise to repay the money to avoid
 unjust enrichment.  Hagadorn v. Durgin & Browne, Inc., 130 Vt. 305, 307, 292 A.2d 255, 257 (1972) (quoting B. Shipman, Common Law Pleading { 59, at 161
 (3d ed. 1923)).  This is an application of the general principles of quasi-
 contract to the transfer of money.  See generally Center v. Mad River Corp.,
 151 Vt. 408, 412, 561 A.2d 90, 93 (1989) (elements of quasi-contract
 recovery).  It is covered by an action in assumpsit for money had and
 received.  See Atlantic Coast Line R.R. v. Florida, 295 U.S. 301, 309
 (1935); Siegel Oil Co. v. Gulf Oil Corp., 701 F.2d 149, 152 (Temp. Emer. Ct.
 App. 1983).
      In order to recover from Deborah Cutler, however, plaintiff must show
 that she has "money actually received and wrongfully withheld."  Coast
 Trading Co. v. Parmac, Inc., 587 P.2d 1071, 1076 (Wash. Ct. App. 1987).  At
 best, plaintiff showed that Deborah Cutler had access to the funds and may
 have used them for household expenses that benefited her in part.  Without
 ruling on whether plaintiff could recover from Deborah Cutler if she showed
 that Deborah Cutler actually received the money involved, there is no proof
 of actual receipt in this case.  The court did not err in refusing to
 submit the restitution claim against Deborah Cutler to the jury.
                                     E.
      Plaintiff's last argument is that the court erred in failing to award

 

 her prejudgment interest.(FN4)  The court refused to award interest for the
 period between the date of improper construction of the house and the date
 of the judgment.  It found that the amounts awarded for repair of the
 construction to comply with the plans were determined as of the date of
 trial so that an award of interest from the date of construction would
 result in double recovery.
      Some of our earlier cases suggest that prejudgment interest is awarded
 as a matter of right in breach of contract actions.  See Eccomunity, Inc. v.
 Lussier, 147 Vt. 276, 279, 514 A.2d 711, 714 (1986); VanVelsor v.
 Dzewaltowski, 136 Vt. 103, 106, 385 A.2d 1102, 1104 (1978).  However, our
 more recent decisions have announced a general rule, applicable in either
 tort or contract actions, that interest is awarded as of right "where
 damages are liquidated or readily ascertainable."  P.F. Jurgs & Co. v.
 O'Brien, ___ Vt. ___, ___, 629 A.2d 325, 331 (1993); see also Newport Sand &
 Gravel Co. v. Miller Concrete Constr., Inc., ___ Vt. ___, ___, 614 A.2d 395,
 398 (1992) (contract); Turcotte v. LaRose, 153 Vt. 196, 199, 569 A.2d 1086,
 1088 (1989) (tort).  In this case, the damages were not readily
 ascertainable and were the subject of conflicting expert testimony.  As
 discussed infra, the parties dispute how the jury could arrive at the
 damages it awarded.  Thus, we do not believe plaintiff was entitled to
 interest on most of her damages as a matter of right.
      In breach of contract cases, damages are to be measured at the time of
 breach with interest to the date of judgment.  See Appropriate Technology

 

 Corp. v. Palma, 146 Vt. 643, 646, 508 A.2d 724, 726 (1986).  In this case,
 however, the trial court determined that damages were measured at the time
 of trial by the expert witnesses on which the jury relied.   We agree that
 it was within the court's discretion to deny prejudgment interest for those
 items.(FN5)
      The jury also awarded damages of $3,500 for defendant's overbilling of
 labor and materials and billing for labor and materials not used in the
 construction of plaintiff's home.  These amounts were readily ascertainable,
 and there was no risk of double recovery.  It was error to fail to award
 prejudgment interest on these amounts.
                                     II.
                                     A.
      Defendant has also appealed on two points.  The first is that the
 charge was erroneous in requiring the jury to allocate damages
 "proportionately" between defendant and the foundation contractor, William
 E. Dailey, Inc., although the breaches of contract alleged and found with
 respect to each defendant were independent and separate.  In one part of the
 charge, the court clearly specified that defendant "will be liable for
 damages resulting from [deviation from plans and specifications]."  This
 point was repeated a number of times.  However, later in a discussion of
 damages with respect to the foundation contractor, the court stated:
                     Damages is a legal term meaning compensation.  The
                  measure of damages for breach of a contractual duty
                  under a construction contract is the reasonable cost of
                  repair or, if the repair involves unreasonable economic
                  waste, the measure of damages is the diminution of the
                  value of the property resulting from the breach.  If

 

                   you decide that this is the proper method of assessing
                   any damages, you must allocate the damages
                   proportionately between the parties whose breach of
                   contract occasioned the damages.

 The point was repeated with respect to defendant except that the end of the
 last sentence required the jury to allocate proportionately "between the
 parties whose breach occasioned the injury."  The interrogatories required
 the jury to itemize the damages for each breach of contract and contained no
 direction to allocate damages.  For example, after asking whether defendant
 deviated from the plans and specifications, the interrogatories went on to
 ask, "If yes, what amount of damages will compensate her for the breach, if
 any?"
      In reviewing jury instructions, we look at them as a whole, not
 piecemeal.  See Favreau v. Miller, 156 Vt. 222, 230, 591 A.2d 68, 73
 (1991).  If the charge as a whole "'breathes the true spirit and doctrine
 of the law' and there is no fair ground to say the jury has been misled,"
 there is no ground for reversal.  State v. Valley, 153 Vt. 380, 398, 571 A.2d 579, 588 (1989) (quoting State v. Norton, 147 Vt. 223, 235, 514 A.2d 1053, 1061 (1986)).
      It is clear from the court's ruling on the new trial motion that it
 intended to convey a very narrow principle.  That is, the court intended to
 convey that if the jury used the alternative method of damage calculation
 based on diminution of value of the property and found that more than one
 contractor had committed a breach affecting that value, it had to allocate
 that diminution between the breaches it found.  The court was correct in
 charging the alternative measures of damages in these circumstances.  See
 Restatement of Contracts 2d { 348(2) (1982) (when breach of construction
 contract results in unfinished or defective construction and loss in value
 to plaintiff cannot be calculated with sufficient certainty, measure of

 

 damages is either cost of repair or "diminution in the market price of the
 property").  If damages are to be measured by diminution in value of the
 property, and more than one contractor has committed a breach that affects
 that value, the diminution in value may be allocated to the contractors in
 relation to their impact on the diminution.(FN6)
      Defendant reads the charge as requiring the jury to add up all the
 items of damages attributable to each defendant and then allocate the
 damages proportionately to each defendant.  Further, he argues that
 "proportionately" actually means equally so that each defendant will pay
 half the overall damages.  Although the language could have been more
 precise, we do not believe there is a serious risk that the jury misread it
 in the tortured fashion defendant alleges.  Defendant's reading creates an
 unnecessary internal inconsistency in the charge overall and a misreading of
 the term "proportionately."  We conclude that the charge, when read in its
 entirety, conveys the proper legal principles to the jury and is not
 misleading.
                                     B.
      Defendant's second claim is that the jury verdict for $66,500 for
 deviation from the plans and specifications is excessive and the trial court
 erred in refusing to give him a new trial.  He analyzes each of the improper
 actions claimed by plaintiff, argues that many cannot be classified as
 failure to follow the plans and specifications, and concludes that the jury
 could have found only $34,446 attributable to his deviations from the plans

 

 and specifications.  Many of the items of damage are excluded by him because
 he claims that there was no applicable plan or specification or because the
 item is based on poor quality labor or materials, for which the jury found
 no breach.
      In evaluating this claim, we must consider the evidence in the light
 most favorable to the damages found by the jury and uphold the verdict if
 there was evidence reasonably supporting it.  See Lorrain v. Ryan, ___ Vt.
 ___, ___, 628 A.2d 543, 548 (1993).  Both the verdict and the court's ruling
 denying a new trial involve discretion.  See id.
      We have examined each of the items of damage defendant would exclude as
 not fairly within the jury's verdict, as well as the additional items raised
 by plaintiff.  Much of the dispute involves whether a particular item is
 properly characterized as a deviation from the plans and specifications.
 We conclude, as did the trial court, that the evidence supported items of
 deviation from the plans and specifications that exceeded the $66,500 the
 jury awarded for this purpose.  In many cases, those same items could have
 been characterized in a different way to bring them outside the verdict.
 The characterization was, however, for the jury.  This case is similar to
 Retrovest Assocs. Inc. v. Bryant, 153 Vt. 493, 498, 573 A.2d 281, 284
 (1990), in which we concluded that "the jury could reach virtually any
 amount within very wide limits."  The verdict is within those wide limits.
      The judgment against defendant William E. Dailey, Inc. is affirmed.
 The judgment against defendant Richard Cutler d/b/a Cutler Construction Co.
 for breach of contract is remanded for addition of prejudgment interest on
 the damages awarded for overcharging on labor and materials and charging for
 labor and materials not used in plaintiff's house, and is in all other
 respects affirmed.  The directed verdict for Deborah Cutler is affirmed.

 

 The judgment for defendant Richard Cutler d/b/a Cutler Construction Co. on
 plaintiff's fraud claim, based on the jury verdict, is affirmed.  The
 directed verdict for defendant Richard Cutler d/b/a Cutler Construction Co.
 on plaintiff's fraud-in-the-inducement and consumer fraud claims is reversed
 and remanded.

                                    FOR THE COURT:


                                    _____________________________
                                    Associate Justice

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                                Footnotes


FN1.    The court directed a verdict on this theory because it directed a
verdict on the fraud-in-the-inducement theory.  Plaintiff challenges this
rationale, but our resolution of the fraud claims makes consideration of
this challenge unnecessary.

FN2.    The fraud-in-the-inducement claim, and the related Consumer Fraud
Act claim, were dismissed before the directed verdict for Deborah Cutler.
Plaintiff has not specifically argued that these claims should be
differentiated from the remaining claims against Deborah Cutler.  Therefore,
our discussion of the liability of Deborah Cutler covers all of these
claims.

FN3.    Plaintiff submitted a pro se brief, solely on this point, apparently
because her counsel would argue only that Deborah Cutler should be liable
for restitution damages.

FN4.    This issue covers both the judgment against Richard Cutler and the
judgment against the foundation contractor, William E. Dailey, Inc.  The
foundation contractor has not participated in this appeal.  Our mandate
addresses the judgment against it, however, because of plaintiff's argument
on this issue.

FN5.    Plaintiff argues alternatively that she is entitled to damages for
loss of use of a completed house after defendant left the job.  Plaintiff
never argued this below, and we have not considered it.

FN6.    An alternative is that each wrongdoing is responsible for the entire
loss when each is a "substantial factor" in bringing it about.  These
alternatives are discussed in the majority opinion and dissent in Bowen v.
United States Postal Service, 459 U.S. 212 (1983); see also 5 Corbin on
Contracts { 999, at 24-25 (Supp. 1992).  The alternative is less favorable
to defendant.