Brokers, Inc. v. High Point City Bd. of Ed.

• Decision Date: 20 April 1977
• Docket Number: No. 7618SC700,7618SC700
• Citation: 33 N.C.App. 24,234 S.E.2d 56
• Court: North Carolina Court of Appeals
• Parties: BROKERS, INC. v. HIGH POINT CITY BOARD OF EDUCATION.

Page 56

234 S.E.2d 56

33 N.C.App. 24

BROKERS, INC. v. HIGH POINT CITY BOARD OF EDUCATION.

No. 7618SC700.

Court of Appeals of North Carolina.

April 20, 1977 Certiorari Denied by Supreme Court July 14, 1977.

[33 N.C.App. 28] Stephen E. Lawing, High Point, for plaintiff appellant.

D. P. Whitley, Jr., and Hugh C. Bennett, Jr., High Point, for defendant appellee.

PARKER, Judge.

The only question presented is whether the trial court erred in granting judgment for defendant notwithstanding the verdict returned by the jury for plaintiff. We find no error.

When passing on a motion for judgment notwithstanding the verdict, the same standards applicable to a motion for directed verdict are to be applied. Thus, the court must consider the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to support a verdict for plaintiff. Hargett v. Air Service and Lewis v. Air Service, 23 N.C.App. 636, 209 S.E.2d 518 (1974).

The evidence in the present case, when viewed in the light most favorable to the plaintiff, shows the following: Pursuant to a set of plans and specifications prepared by defendant's architect, plaintiff submitted the low bid on 16 January 1973 on a grading and storm drainage project for a new road to be built in High Point. Three days thereafter the parties executed a standard from contract for this job. While performing the undercut excavations specified by the contract, plaintiff began experiencing extremely miry subsoil conditions not apparent on the surface of the land. Because plaintiff's heavy equipment could not move over such terrain, plaintiff submitted two requests for Change Orders for defendant's consideration pursuant to Article 22 of the contract which provides:

"ARTICLE 22

CHANGES IN THE WORK

22.1 The Owner without invalidating the Contract may order Changes in the Work consisting of additions, deletions, or modifications, the Contract Sum and the Contract Time being adjusted accordingly. All such Changes in the Work shall be authorized by written Change Order signed by the Owner or the Architect as his duly authorized agent.

22.2 The Contract Sum and the Contract Time may be changed only by Change Order."

By these requests, plaintiff sought permission to undercut an additional six feet and to install a French drain after making the additional excavation; both requests for Change Orders were denied by defendant. Finding that the job could not be finished unless the water was drained from the area, plaintiff proposed another Change Order for the installation of a French drain. Plaintiff was notified verbally by defendant's architect to proceed on the work requested, which plaintiff did. However, in installing the French drain plaintiff excavated from 6 feet to 12 feet more than the specifications called for. After most of this portion of the work was completed, defendant sent plaintiff written approval of its Change Order request to install the French drain at an addition of $10,502.00 to the contract price. A little over a month later, plaintiff requested an additional $29,700.00 for the extra excavation work, which request defendant denied. After the parties agreed to waive Article 15 of the Contract, which provides that "(a)ll claims or disputes arising out of this Contract or the breach thereof shall be decided by arbitration," plaintiff finished the project and then brought this action seeking compensation for the extra work.

We affirm the trial court's action in granting defendant's motion for judgment n.o.v. Where the language of a contract is plain and unambiguous the court rather than the jury will declare its meaning. Yates v. Brown, 275 N.C. 634, 170 S.E.2d 477 (1969). Article 22 of the written contract specifically states that all "Changes in the Work shall be authorized by a written Change Order signed by the Owner or the Architect as his duly authorized agent," and that "(t)he Contract Sum and the Contract Time may be changed only by Change Order." All of the evidence shows that the...