Brown v. Bowers Const. Co., 112
| Decision Date | 19 November 1952 |
| Docket Number | No. 112,112 |
| Citation | 236 N.C. 462,73 S.E.2d 147 |
| Court | North Carolina Supreme Court |
| Parties | BROWN, v. BOWERS CONST. CO. et al. |
Ward & Bennett, Williams & Williams, Asheville, for plaintiffs appellants.
Smathers & Meekins, Asheville, for defendant appellee.
The questions involved on this appeal as stated in plaintiffs', appellants', brief are these:
We are of opinion that upon consideration of the record and case on appeal both questions merit an affirmative answer.
I. The two assignments of error based upon exceptions (1) to the refusal of the court, upon objection by defendants, to admit in evidence, when offered by plaintiffs, the option and contract, Exhibit P-2, executed by the Trustees of the J. M. Westall Trust to and with the State Highway and Public Works Commission in respect to purchase of right of way for highway purposes over the Westall Trust property at the point where the bridge over the river was later constructed, and on which plaintiffs' property, here involved, was located, and (2) to the exclusion of oral testimony tending to show that the State Highway and Public Works Commission had exercised the option as provided in the contract.
This evidence is pertinent and material to the controversy at issue. It is seen by reference to the contract that 'This option also includes the purchase of a frame garage', but that 'other buildings on the right of way to be removed therefrom and reconstructed on property belonging to the Trust, without prejudice to occupancy and rights of tenants, under the general contract and at the expense of the State Highway Commission'. And the matter of the removal and reconstruction of the buildings is made a part of the consideration to be paid by the State Highway and Public Works Commission.
The language of these provisions is plain, and, by fair interpretation, clearly shows an intent upon the part of the Trustees of the J. M. Westall Trust to act in the interest, and for the benefit of their tenants--these plaintiffs.
And, by reference to the contract between the State Highway and Public Works Commission and Bowers Construction Company it clearly appears that the State Highway and Public Works Commission projected therein special provisions, of like character, intended to be in the interest, and for the benefit of the Westall tenants, who are the plaintiffs.
And it is a well-settled principle of law in this State that where a contract between two parties is made for the benefit of a third person, or party, the latter is entitled to maintain an action for its breach. Gorrell v. Greensboro Water Supply Co., 124 N.C. 328, 32 S.E. 720, 46 L.R. A. 513; Parlier v. Miller, 186 N.C. 501, 119 S.E. 898; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A.L.R. 428; Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Chipley v. Morrell, 228 N.C. 240, 45 S.E.2d 129; Coleman v. Mercer, 229 N.C. 245, 49 S.E.2d 405; Canestrino v. Powell, 231 N. C. 190, 56 S.E.2d 566, and cases there cited.
II. Now as to assignment of error based upon exceptions to the ruling of the trial court in granting at close of plaintiffs' evidence motion of defendant Bowers Construction Company for judgment as of nonsuit as to it.
The parties do not debate in this Court the question as to sufficiency of the evidence, offered on the trial below, to take the case to the jury as to the defendant G. E. Crouch. Hence the sole question here for decision is whether or not there is evidence tending to show obligation on the part of Bowers Construction Company to observe the special provisions of the general contract with the State Highway and Public Works Commission assumed by it in respect to removal and relocation of the buildings and contents of buildings, after it had sublet to defendant G. E. Crouch the performance of the work of removing and relocating the buildings. This is a matter of law to be determined upon proper interpretation of the...
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