NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUI No: 02-2478… v. Oliver Morton

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUI
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No: 02-2478
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ABRAHAM HEWITT;
DOREEN HEWITT
v.
OLIVER MORTON,
Appellant
Appeal from the District Court of the Virgin Islands
(D.C. Civil Action No. 96-cv-00093)
District Judge: Honorable Thomas K. Moore
Argued on April 28, 2003
Before: ROTH, MCKEE and COWEN Circuit Judges
(Opinion filed August 28, 2003 )
George W. Cannon, Jr., Esquire (Argued)
70 & 70-A (115) Queen Street
Frederiksted
St. Croix, USVI 00840
Counsel for Appellees

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Edward H. Jacobs, Esquire (Argued)
Jacobs & Brady
7 Church Street
Christiansted
St. Croix, USVI 00820
Counsel for Appellant
O P I N I O N
ROTH, Circuit Judge:
Oliver Morton, a licensed contractor, prepared written estimates for repairs to two
properties of Abraham Hewitt. The properties had been extensively damaged by
Hurricane Hugo. Formal documents were prepared which contained slightly more
general specifications than did the estimates and which outlined the scope of work to be
performed at a cost broken down into payments due at stages of completion over a 90-day
period. Morton completed work on the first property in November 1991. However, as
the Territorial Court found, he improperly laid out the roof and built the walls higher than
requested. Morton ceased work on the second property in March 1992 as a result of the
dispute with Hewitt. During the course of construction, Morton was regularly absent
from the job site, left the site undermanned while working on other projects, and made
unauthorized changes over and above the changes requested by Hewitt.
Hewitt filed suit for breach of contract in July 1992. Morton defended on the basis
that (1) no contract existed; (2) if a contract did exist it was too uncertain to be enforced;

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and (3) he was not in breach. The Territorial Court found that an express contract did
exist, that it was of the requisite certainty, and that it was materially breached. The court
awarded $48,579.10 in damages to Hewitt. The court also denied Morton’s counterclaim
for restitution. The Appellate Division affirmed, and M orton appealed.
Our standard of review is plenary because questions concerning contract existence,
certainty, and breach are matters of contract construction. See Ram Constr. Co., Inc. v.
American States Insurance Co. 749 F.2d 1049, 1053 (3d Cir. 1984). Applying this
standard, we will affirm the judgment of the Appellate Division.
Specifically, we hold that an express contract existed between the parties, its
formation occurring when Morton accepted Hewitt’s offer by beginning work on the
properties. “Acceptance by performance requires that at least part of what the offer
requests be performed or tendered . . . .” Restatement (Second) of Contracts § 50(2)
(1981). This was an express contract, because the nature of the work to be done and the
price to be charged was set forth through the dealings between the parties and the
language in the estimates. See Restatement (Second) of Contracts § 4 (1981).
Morton argues, however, that the terms of the documents were too vague.
Specifically, he contends that, although the documents called for repairs of particular
rooms and structures, they did not mention what parts or features of the room or structure
should be repaired or replaced, or what materials should be used in doing so. We
disagree. Our review of the record convinces us that the Territorial Court properly

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determined that the parties, through their dealings and through the language of the
estimates, created express contracts for the repair of each property.
We also hold that Morton breached the contracts when he delayed completion of
the first job and abandoned the second job. Although builders may waive or extend
completion deadlines, waivers or extensions that are silent as to duration extend the
deadline only for a reasonable time. Curtis Elevator Co., v. Hampshire House, Inc., 362
A.2d 73, 76 (N.J.Super. 1976). Expert testimony established that nine to twelve months
was a reasonable time for completion of the repairs. Thus, Morton’s 17 months’
completion time was in fact unreasonable and placed him in breach. Moreover, we agree
with the Territorial Court’s holding that the dispute between the parties over installation
of windows and tiles on the first property was not justification for abandoning work on
the second.
Morton counterclaimed for restitution for the value of his services. The Territorial
Court denied the counterclaim on the ground that it was not supported by the evidence.
Moreover, restitution is not available where an express contract exists. See Christian v.
Joseph, 23 V.I. 193, 200 (D.V.I. App. 1987).
For the above reasons, we will affirm the order of the Appellate Division,
affirming the judgment of the Territorial Court.

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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge

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