Spotsylvania County School Board v. Seaboard Surety Co. , 243 Va. 202 ( 1992 )

JUSTICE COMPTON, with whom RETIRED JUSTICE HARRISON

joins, dissenting.

I do not agree that the judgment in favor of Sherman should be reversed due to the trial court’s use of the words “material” and “materially” in the instructions outlining the contractual test for termination by the School Board.

In the first place, I do not believe that the court erred in using the words. According to the contract, Sherman could be terminated if guilty of a “substantial” violation of a provision of the contract documents. Words used by parties in their contract normally are given “their usual, ordinary, and popular meaning.” Winn v. Aleda Constr. Co., 227 Va. 304, 307, 315 S.E.2d 193, 195 (1984). According to popular meaning, “material” is synonymous with “substantial.” Black’s Law Dictionary 1428 (6th ed. 1990); Webster’s Third New International Dictionary 2280 (1981).

Consequently, use of the words “material” and “materially,” along with “substantial,” could not have placed a heavier burden upon the School Board to establish its rights to terminate than the contract imposed. Indeed, by its very terms, the instruction related the language “defeats the purpose of the contract,” found objectionable by the majority, not just to a “material” breach of contract but also to a “substantial” breach of contract; hence, the burden placed by use of “material” was equal, not heavier.

In the second place, even if the trial court erred in using “material” and “materially,” I would not hold that such a minor error necessitates a reversal. Code § 8.01-678 mandates that when it “plainly appears” from the appellate record and the evidence presented at the trial “that the parties have had a fair trial on the merits and substantial justice has been reached, no judgment shall be . . . reversed” because of any “defect, imperfection, ... or for any error committed on the trial.”

After a seven-day trial, a local jury has found against the local school board. This verdict has been confirmed by the trial judge. The record demonstrates that the parties, especially the School Board, have had a fair trial and that substantial justice has been obtained.

I would not put the litigants to the time and expense of further litigation of these issues because of an imperfection in two instructions. There is no such thing as a perfect trial; a litigant is entitled to a fair trial and to nothing more.