Brown v. East Carolina R. Co

• Decision Date: 15 March 1911
• Court: North Carolina Supreme Court
• Parties: BROWN. v. EAST CAROLINA R. CO.

70 S.E. 625

154 N.C. 300

BROWN.

v.EAST CAROLINA R. CO.

Supreme Court of North Carolina.

March 15, 1911.

1. Appeal and Error (§ 1018^*) — Review — Findings—Reference—Conclusions.

Findings of fact by a referee, supported by evidence and sustained by the trial court, are not reversible.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4011-4012; Dec. Dig. § 1018. *j

2. Contracts (§ 208*)—Construction—Interpretation.

A contract for the construction of a railroad bridge within a specified time, which provided for the delivery of the materials within 300 feet of the work, so as not to impede it, clearly contemplated that the material should be delivered at a point best suited for the purposes of the work, and hence a delivery of material within 300 feet, but across a slough, is not a compliance with the contract.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 929-935; Dec. Dig. § 208.*]

3. Damages (§ 122*)—Rreach of Contract-Delay in Performance.

Where defendant's delay in failing to deliver materials for a certain railroad bridge according to its contract caused the bridge builder's pile driver to be idle for some time, during which time it might have been rented, the rental value of the machine during that time is the proper measure of damages.

[Ed. Note.—For other cases, see Damages, Cent. Dig. §§ 309-319; Dec. Dig. § 122.*]

Appeal from Superior Court, Greene County; G. W. Ward, Judge.

Action by H. A. Brown against the East Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

There was evidence tending to show that on September 16, 1907, plaintiff and defendant company had entered into a contract that plaintiff was to construct for defendant a trestle and fender over Contentna creek near Hookerton, N. C., the same to be built in a substantial and workmanlike manner and completed by 1st of December. 1907. and defendant on its part agreed that it would furnish and supply "on board cars, or on ground within 300 feet of said trestle, all of the material to be used in the construction of said work and same is to be furnished in such a manner and time as not to impede the said Brown in the performance of his part of the said contract." The work having been completed, the action was instituted to recover a balance alleged to be due plaintiff on the contract, and also damages for failure to supply material in the time stipulated for in the contract. Defendant denied any and all liability to plaintiff, and set up, further, a counterclaim for damages by rea-son of failure to do the work properly and according to the terms and stipulations of the contract. The cause was referred by consent to Messrs. L. R. Varser and Thos. D. Warren, and, on the hearing before the referees, there was evidence offered by the parties in support of their respective positions. Referees made their report to February term, 1010, making very full findings of fact and holding for conclusions of law: (1) That there had been a failure on part of defendant to deliver material on time, causing damage. (2) That defendant was indebted to plaintiff in the sum of $1,334.90, balance due for the work and damages caused by wrongful delay on part of defendant. (3) There was nothing due defendant on counterclaim. The court on the hearing overruled the defendant's exceptions, in all respects confirmed the report, and gave judgment for the amount ascertained to be due and defendant excepted and appealed.

John U. Bridgers, for appellant.

D. L. Ward and Simmons & Ward, for respondent.

HOKE, J. (after stating the facts as above). The issue of indebtedness between these parties is dependent largely upon disputed questions of fact, and these having been resolved against defendant by the referees and on relevant testimony, and their findings having been affirmed by the trial court, there is very little left for our consideration. It has been uniformly held with us that in actions of this character "the findings of fact by a referee, supported by evidence and sustained by the trial court, are not reversible." Malloy v. Lincoln Mills, 132 N. C. 432, 43 S. E. 951; Rambertson v. Vann, 134 N. C. 108, 46 S. E. 10. And we are of opinion that the exceptions to the conclusions of law were properly overruled.

Objection was made first to the conclusion on the part of the referees that there had been a wrongful delay on the part of defendant in the delivery of material, causing damage. This position was predicated chiefly on the finding of fact No. 9. as follows: "That the plaintiff was at all times ready, able, and willing to perform the work in accordance with the terms of the contract, but was prevented from performing the same as required by the contract on account of the defendant's failure to furnish the material as agreed and on account of the defendant's delivering part of the material on the opposite side of a slough from the trestle or in a slough at such points rendering it necessary for plaintiff to haul said material about one-half a mile to get it to the place of construction." And. taken in connection with the requirement of the contract "that defendant agreed to deliver all material for the trestle on cars or on the ground and within 300 feet of the trestle and same is to be furnished in such a manner and time as not to impede said Brown in the performance of his part of the contract, " the ruling is clearly correct. In support of the finding there was evidence on the part of plaintiff tending to show that a lot of heavy material was dumped on the ground about 300 feet from the trestle in a direct line, but across a slough, which necessitated an additional haul of a half a mile on part of plaintiff, causing delay and extra expense. There was no sufficient or satisfactory explanation offered as to the unloading of the material at such an inconvenient place. It is a principle well understood...