Boggs v. Mills

• Decision Date: 28 April 1903
• Citation: 132 N. C. 432,43 S.E. 951
• Court: North Carolina Supreme Court
• Parties: MALLOY & BOGGS. v. LINCOLN COTTON MILLS.

43 S.E. 951

132 N. C. 432

MALLOY & BOGGS.

v.LINCOLN COTTON MILLS.

Supreme Court of North Carolina.

April 28, 1903.

CONTRACT — IMPLIED EXTENSION — DAMAGES FOR DELAY—QUANTUM MERUIT—FINDINGS OF FACT—APPEAL.

1. Where there was evidence to sustain each and every finding of a referee, and such findings were sustained by the trial court, they are not reviewable on appeal.

2. In an action to recover for work under a contract to lower the bed of a tail race, it was found that the contract was partly written and partly oral; that defendant had represented that only part of the race needed to be excavated, and that by reason of facts not patent to the plaintiff the work would be less difficult than it afterwards proved to be; that plaintiff relied on these representations; that the work required more time than contemplated; and that defendant had accepted the work, and was using it. Held, that the time for the completion of the work was impliedly and necessarily extended,.

3. It was further found that there was no evidence of actual loss to defendant by reason of the delay. Held, that defendants were not entitled to recover damages on account of plaintiff's failure to have the work completed at the date first specified.

4. In an action to recover for work done in lowering the bed of a tail race, it was found that part of the work done, which was accepted by the defendant, was not contemplated in the original contract. Held, that plaintiffs were entitled to recover for their work at the rate they were to be paid for the other work originally contemplated.

Appeal from Superior Court, Lincoln County; Coble, Judge.

Action by Malloy & Boggs against the Lincoln Cotton Mills. Judgment for plaintiffs, and defendant appeals. Affirmed.

Burwell & Cansler and C. E. Childs, for appellant.

D. W. Robinson, for appellees.

CLARK, C. J. This was an action to recover for work and labor in excavating and lowering the bed of the tail race for the defendant. The defendant set up a counterclaim for damages caused by delay in completing the work. The appeal was practically narrowed in the argument to the counterclaim. The briefs and the oral argument on both sides were able, full, and exhaustive, and, after fullest consideration, we think the referee found, upon competent evidence, that the defendant was to keep the water pumped out of said race, and to keep the same dry and in proper condition for the work during the progress thereof; that the excavation of the tail race, except as to the...