Alva v. Cloninger, 8015SC825

• Decision Date: 05 May 1981
• Docket Number: No. 8015SC825,8015SC825
• Citation: 51 N.C.App. 602,277 S.E.2d 535
• Parties: Juan ALVA and wife, Elsa M. Alva v. William Harrill CLONINGER.
• Court: North Carolina Court of Appeals

Page 535

277 S.E.2d 535

51 N.C.App. 602

Juan ALVA and wife, Elsa M. Alva v. William Harrill CLONINGER.

No. 8015SC825.

Court of Appeals of North Carolina.

May 5, 1981.

Epting, Hackney & Long by Joe Hackney, Chapel Hill, for plaintiff-appellants.

Moore & Emmerson by Joseph I. Moore, Jr., Chapel Hill, for defendant-appellee.

BECTON, Judge.

Plaintiffs first contend that the court erred in granting a directed verdict for defendant on plaintiffs' contract claim at the close of plaintiffs' evidence. Plaintiffs argue that they are entitled to recover on the contract as its intended beneficiaries since it was stipulated that "NCNB Mortgage Corporation contracted with defendant to provide an appraisal report and an appraisal fee of $100 was paid to the defendant by NCNB Mortgage Corporation subsequent to the submission of the appraisal report."

According to plaintiffs, there was evidence sufficient to show, prima facie, (1) that defendant breached his contract with NCNB; (2) that defendant was aware that Dr. Alva was the "Borrower/Client"; (3) that defendant was required to inspect the property "inside and out" and report any defect which would impair market value; (4) that the defects which existed at the time of purchase also existed at the time of appraisal; and (5) that defendant failed to report any defects. This evidence, plaintiffs maintain, should have gone to the jury for a determination of whether defendant's failure to report the defects to NCNB constituted a substantial breach of contract.

"It is well settled in North Carolina that where a contract between two parties is intended for the benefit of a third party, the latter may maintain an action in contract for its breach...." (Citations omitted.) An intended beneficiary, despite a lack of privity, may sue on the contract, either for its performance or damages.

Howell v. Fisher, 49 N.C.App. 488, 493, 272 S.E.2d 19, 23 (1980). The test, then, in third-party beneficiary cases, is whether the parties to the contract intended to confer a benefit directly upon the person so claiming, or whether the benefit to the claimant was merely incidental. Vogel v. Supply Company, 277 N.C. 119, 128, 177 S.E.2d 273, 279 (1970); Restatement (Second) of Contracts § 133 (1973).

The American Law Institute's Restatement of Contracts provides a convenient framework for analysis. Third-party beneficiaries are divided into three groups: donee beneficiaries, where it appears that the "purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary"; creditor beneficiaries, where "no purpose to make a gift appears" and "performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary"; and incidental beneficiaries, where the facts do not appear to support inclusion in either of the above categories. Restatement of Contracts, § 133 (1932). While duties owed to donee beneficiaries and creditor beneficiaries are enforceable by them, Restatement of Contracts §§ 135, 136, a promise of incidental benefit does not have the same effect. "An incidental beneficiary acquires by virtue of the promise no right against the promisor or the promisee." Restatement of Contracts, § 147.

277 N.C. at 127, 177 S.E.2d at 278. "(T)he law in this State as to direct third-party beneficiaries is synonymous with the Restatement categories of donee and creditor beneficiaries." (Citations omitted.) 277 N.C. at 127, 177 S.E.2d at 278.

Plaintiffs fail to demonstrate that they were either "donee" or "creditor" beneficiaries. The appraisal was requested by NCNB to assist NCNB in processing the plaintiffs' loan application. It is important to note that NCNB considers several other factors (for example, credit standing and income) in processing loan applications. So, while it is clear that plaintiffs did stand to benefit from a favorable appraisal to the extent their loan application hinged on the appraisal, such benefit was merely incidental to the purpose of the agreement. Significantly, the defendant was not instructed by NCNB to provide plaintiffs with a copy of the appraisal report, and NCNB did not furnish plaintiffs with a copy. As pointed out above, the mere fact that a third person may receive benefits from a contract between two parties, or suffer damage by reason of a breach thereof, is insufficient to allow the third party to sue for a breach of contract as a third-party beneficiary. We hold, as did this court in Howell v. Fisher, that the plaintiffs' evidence did not establish a claim as "intended beneficiaries ... for there is no recital that the contract was entered into for their direct benefit." (Citations omitted.) 49 N.C.App. at 493, 272 S.E.2d at 23.

Plaintiffs' alternative theory that the trial court erred in directing a verdict for defendant on plaintiffs' tort claim at the close of plaintiffs' evidence finds support in our case law. First, it is clear as a general matter, that an inference of negligence based on direct or circumstantial evidence may be sufficiently strong to take a case to the jury. See Lassiter v. Williams, 272 N.C. 473, 158 S.E.2d 593 (1968). "(P)laintiff(s) need not directly prove negligence, but must prove facts from which the jury would be warranted in inferring it." Redding v. Woolworth Co., 9 N.C.App. 406, 408, 176 S.E.2d 383, 384-85 (1970); appeal after remand, 14 N.C.App. 12, 187 S.E.2d 445 (1972). Indeed, "(o)n a motion for judgment of compulsory nonsuit, plaintiff's evidence is to be taken as true, and considered in the light most favorable to him, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence." King v. Bonardi, 267 N.C. 221, 224, 148 S.E.2d 32, 35 (1966).

Second, and more particularly, "(a) nonsuit on the issue of negligence should not be allowed unless the evidence is free of material conflict, and the only reasonable inference that can be drawn therefrom is that there was no negligence on the part of defendant, or that his negligence was not the proximate cause of the injury." Price v. Miller, 271 N.C. 690, 693, 157 S.E.2d 347, 349-50 (1967). A directed verdict is seldom appropriate in a negligence case.

Plaintiff Juan Alva's testimony that he discovered numerous defects almost immediately upon moving into the house, coupled with the expert opinion testimony that such defects existed at the time of the appraisal is sufficient to support, but not compel, a jury's finding that the defects did exist when defendant inspected the house. Additionally, plaintiffs produced expert testimony that an appraiser using due care would have discovered and disclosed such defects. We think the evidence presented at trial was sufficient to permit a reasonable inference of negligence, and therefore the case should have been submitted to the jury notwithstanding the lack of privity.

The absence of contractual privity between plaintiffs and defendant is not a bar to plaintiffs recovery in tort. See Prosser, Misrepresentation and Third Persons, 19 Vand.L.Rev. 231 (1966). "(S)ound reason dictates that negligence liability be imposed, in appropriate circumstances, to protect the foreseeable interests of third parties not in privity of contract," Howell v. Fisher, 49 N.C.App. at 493, 272 S.E.2d at 23, and therefore, it has long been established that negligent performance of a contract may give rise to an action in tort. "The parties to a contract impose upon themselves the obligation to perform it; the law imposes upon each of them the obligation to perform it with ordinary care and they may not substitute a contractual standard for this obligation." Toone v. Adams, 262 N.C. 403, 407, 137 S.E.2d 132, 135 (1964). See also Prosser, Handbook of the Law of Torts § 93, at 622 (4th ed. 1971).

In several recent cases, this Court has held that a third party, not in privity of contract with a professional person, may recover for negligence which proximately causes a foreseeable economic injury to him. Condominium Assoc. v. Scholz Co., 47 N.C.App. 518, 268 S.E.2d 12 (1980) (condominium owners may recover for an architect's negligent design of a water pipe system); Leasing Corp. v. Miller, 45 N.C.App. 400, 263 S.E.2d 313, discretionary review denied, 300 N.C. 374, 267 S.E.2d 685 (1980) (equipment lessor may recover for a lawyer's negligent failure to discover the existence of a lien on property used as collateral in a leasing agreement); Browning v. Levien & Co., 44 N.C.App. 701, 262 S.E.2d 355, discretionary review denied, 300 N.C. 371, 267 S.E.2d 673 (1980) (builders may recover from an architectural firm for negligent overcertification to the construction lender of the amount of work performed by a contractor) (see also Kornitz v. Earling & Hiller, Inc., 49 Wis.2d 97, 181 N.W.2d 403 (1970)); Industries, Inc. v. Construction Co., 42 N.C.App. 259, 257 S.E.2d 50, discretionary review denied, 298 N.C. 296, 259 S.E.2d 301 (1979) (a contractor may recover for an architect's negligence in approving defective materials and workmanship).

49 N.C.App. at 494, 272 S.E.2d at 23-24.

In this case, there was evidence from which the jury could have concluded that defendant should have reasonably foreseen and expected that plaintiffs would rely on the appraisal report. For example, plaintiffs were named as "Borrowers" on defendant's work-order; plaintiff...