Brown v. E. H. Clement Co.
| Decision Date | 02 February 1940 |
| Docket Number | 759. |
| Citation | 6 S.E.2d 842,217 N.C. 47 |
| Parties | BROWN v. E. H. CLEMENT CO. |
| Court | North Carolina Supreme Court |
Civil action to recover compensation alleged to be due for services rendered under contract.
The defendant corporation is engaged in the building construction business. In contemplation of bidding for the contract for the construction of the buildings to be erected by Duke University in its building program, begun about the year 1927, the defendant approached the plaintiff to procure his services as a foreman to supervise the rubble stone work in connection with the buildings and requested plaintiff not to make any bids for such work but to cooperate with the defendant.
From time to time the defendant submitted bids to the Duke Construction Company and received contracts for the erection of the Stone masonry work in the Hospital and Medical School Building, Group C Dormitory Building, Union Building, School of Religion, Library, Auditorium and Classroom, Group A Dormitory, Group B Dormitory, Law Building, Botany and Zoology Building, A and B Extensions, Physics, Chemistry Stage Addition, Nurses' Home, Gymnasium and Chapel.
The first contract provided for the stone masonry work on the Hospital and Medical Building, Group C Dormitory Building and Union Building. On January 14, 1928, defendant entered into a contract with the plaintiff to pay him $350 per month salary and one-sixth of the net profits received by the defendant for the said work, the net profits to be arrived at as stipulated in the contract. On September 4, 1928, the defendant received a contract for the stone masonry work to be done on the School of Religion, Library, and Auditorium and Class Room. The defendant's contract with the plaintiff was extended to embrace these buildings by letter. The defendant then received contract for the stone masonry work to be done on Group A Dormitory, Group B Dormitory and the Law Building. Its contract with the plaintiff was extended by letter to include these buildings. Upon receipt of the last letter extending his contract plaintiff advised an agent of the defendant that his contract with the defendant embraced all buildings which should be let by contract to the defendant by the Duke Construction Company and that it was needless for the defendant to write him a letter upon the execution of each contract it might make with the Duke Construction Company.
Thereafter the defendant received contract from the Duke Construction Company for the erection of the Botany, Zoology, A and B Extension, Chemistry and Stage Addition Buildings, and still later received a contract for the erection of Duke Chapel and Gymnasium.
The plaintiff alleges that his contract with the defendant was orally extended to embrace the buildings enumerated in the last two contracts between the defendant and the Duke Construction Company and that he did all the rubble stone masonry and lime stone setting on each and every building included therein. He further alleges that he has been paid his full compensation including both salary and interest in the net profits in respect to each and every building constructed by the defendant except the Duke Chapel, the Gymnasium Building and the Nurses' Home, but that his work on the Nurses' Home was done under a separate contract for which he is not entitled to compensation under the terms of the original contract as renewed from time to time. Having been paid his salary he instituted this action to recover $16,382.65 as representing one-sixth of the net profit on the Duke Chapel Building and $2,420.84 as representing one-sixth of the net profit on the Gymnasium Building, together with $43.29 error in the settlement for the other buildings.
The defendant denies that the original contract was extended to include Duke Chapel and the Gymnasium and alleges that it has made full settlement with the plaintiff for all amounts due him under his contract of participation in the net profits derived from the buildings which were embraced in the contract. It further alleges, and pleads in bar, that the plaintiff, on April 4, 1931, executed and delivered to the defendant a receipt in full settlement of all claims and demands for or on account of his profit-sharing interest in all work and labor done by him or under his supervision upon or in connection with the buildings of Duke University.
It likewise sets up a counter-claim in the amount of $500 represented by note dated March 1, 1932.
The Gymnasium Building was completed prior to the execution of the release or receipt set up and pleaded in the defendant's further answer and the Chapel Building was completed some ten months thereafter. Under the contract, the one-sixth interest in the net profits payable to the plaintiff was made payable after the completion of the work on such buildings.
At the January Term, 1938, Hamilton, J., found that on the allegations contained in the pleadings it appeared that "The issues arising upon the pleadings concern the performance of several construction contracts and a division of profits growing out of the performance of such contracts and the examination of a long account between the parties" and entered an order of compulsory reference. The defendant duly excepted thereto.
After hearing the evidence the referee filed his report in which he concluded that plaintiff was not entitled to any compensation on any building which was completed prior to April 4, 1931, the date of the receipt in full settlement signed by the plaintiff; that the plaintiff was entitled to judgment in the sum of $16,382.65 in final settlement of the amount due him on the Chapel Building and that the defendant is entitled to judgment in the sum of $500 with interest on the note of plaintiff to defendant pleaded in defendant's further answer. The defendant filed exceptions: (1) to specific finding of fact by referee; (2) to failure of the referee to find certain specific facts; (3) to certain specific conclusions of law made by the referee; (4) to the failure of the referee to allow the defendant's motion of judgment as of non-suit duly renewed at the conclusion of all the evidence.
In the same paper writing immediately following the exceptions entered the defendant tendered issues and demanded trial by jury on each objection and exception covered by the issues submitted. The issues tendered are made to relate to specific findings of fact.
The plaintiff moved the Court to deny a trial by jury for the reasons assigned in the motion.
After further hearings and argument the court, "being of the opinion that the defendant had waived its right to a jury trial, for that the defendant has failed to tender issues upon its exceptions in accordance with the practice and procedure in cases of compulsory reference, and by failing to assert its right to a trial by jury definitely and specifically under each exception to the referee's report", denied plaintiff's demand for a jury trial. The court likewise overruled the defendant's demurrer ore tenus to the plaintiff's complaint for that the complaint does not state a cause of action. The court then entered judgment confirming, approving and adopting the findings of fact and conclusions of law made by the referee, affirmed the report and entered judgment accordingly. The defendant excepted and appealed.
Hedrick & Hall and Fuller, Reade, Umstead & Fuller, all of Durham, for defendant appellant.
J. Elmer Long, S. C. Brawley, and Marshall T. Spears, all of Durham, for plaintiff appellee.
The defendant's demurrer ore tenus was properly overruled. The plaintiff alleges that the written contract between him and the defendant under which he was to receive one-sixth of the net profits derived by the defendant from the performance of its several contracts with the Duke Construction Company was orally extended to include the Chapel and Gymnasium; that he fully performed his part of the contract; that the defendant has breached the contract by failing to pay him the amount due on the Chapel and Gymnasium Buildings; and that by reason of such breach the defendant is now indebted to him in the amount alleged. This is a sufficient statement of a cause of action to repel a demurrer.
Likewise, the judgment of the court denying the defendant's motion to dismiss as of nonsuit is without error. There is sufficient evidence in the record to sustain prima facie the allegations in the complaint.
The defendant insists that the order of reference was improper and that its motion to vacate the same should have been allowed for the reason that its further answer contains a plea in bar. Jones v. Wooten, 137 N.C. 421, 49 S.E. 915; Garland v. Arrowood, 172 N.C. 591, 90 S.E. 766; Graves v. Pritchett, 207 N.C. 518, 177 S.E. 641; Ward v. Sewell, 214 N.C. 279, 199 S.E. 28.
A plea in bar which extends to the whole cause of action so as to defeat it absolutely and entirely will repel a motion for a compulsory reference and no order of reference should be entered until the issue of fact raised by the plea is first...
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