Burke County Public Schools Bd. of Ed. v. Juno Const. Corp., 8025SC432
| Decision Date | 06 January 1981 |
| Docket Number | No. 8025SC432,8025SC432 |
| Citation | 50 N.C.App. 238,273 S.E.2d 504 |
| Court | North Carolina Court of Appeals |
| Parties | BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION v. JUNO CONSTRUCTION CORPORATION and Statesville Roofing & Heating Company. |
Simpson, Aycock & Beyer by Dan R. Simpson, Samuel E. Aycock, Morganton, and Louis E. Vinay, Jr., for plaintiff-appellant.
Raymer, Lewis, Eisele & Patterson by Douglas G. Eisele, Morganton, for defendant-appellee Statesville Roofing & Heating Co.
Miller, Johnston, Taylor & Allison by John B. Taylor, Charlotte, for defendant-appellee Juno Const. Corp.
Appellant argues two assignments of error before this Court. Plaintiff contends the trial court committed error in the framing of the third issue submitted to the jury, and in charging the jury on that issue.
The pretrial order contains a reference to exhibits F, G, and H as being the issues that plaintiff and defendants contend are to be answered by the jury. Exhibits F, G, and H are not in the record on appeal. Appellant did not object to the wording of the third issue, did not object to that issue's being submitted to the jury, and did not tender any issues to the court.
A party who is dissatisfied with the form of the issues or who desires an additional issue should raise the question at once, by objecting or by presenting the additional issue. If a party consents to the issues submitted, or does not object at the time or ask for a different or an additional issue, he cannot make the objection later on appeal. Baker v. Construction Corp., 255 N.C. 302, 121 S.E.2d 731 (1961); 1 McIntosh, North Carolina Practice and Procedure (2d ed. 1956), § 1353.
Hendrix v. Casualty Co., 44 N.C.App. 464, 467, 261 S.E.2d 270, 272-73 (1980). Because plaintiff neither objected to the third issue submitted to the jury nor requested a different issue, it cannot do so on this appeal.
Plaintiff further insists the court erred in its instructions to the jury on the third issue. Although we find no North Carolina case directly on point, the law in general is that where a contractor is required to and does comply with the plans and specifications prepared by the owner or the owner's architect, the contractor will not be liable for the consequences of defects in the plans and specifications. United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918); 13 Am.Jur.2d Building, Etc. Contracts § 28 (1964); Annot., 88 A.L.R. 797 (1934). The North Carolina Supreme Court, in Construction Co. v. Housing Authority, 244 N.C. 261, 93 S.E.2d 98 (1956), held that allegations of plaintiff contractor that it constructed floor slabs in accordance with plans and specifications provided by defendant's architect and that the slabs settled through no fault of plaintiff, and that plaintiff was required to correct the settling, were sufficient to state a cause of action, at least for the purposes of allowing a motion for discovery. Although the precise question was not presented in Construction Co., it is persuasive authority for adoption of the general rule above stated, and we so do.
Where the contractor does not comply with the plans and specifications provided by the owner, notwithstanding the fact that they are defective, the contractor proceeds at his peril, assuming the risk of any deviations from the plans and guaranteeing the suitability of the work. Annot., 6 A.L.R.3d 1394, 1415 (1966).
Here, the trial judge instructed the jury on the first issue:
(I)f the plaintiff has satisfied you by the greater weight of the evidence that Juno, acting through its subcontract with Statesville, failed to comply with the conditions and specifications of the contract, in that it applied bitumen in such a manner that foaming resulted, or that it used insulation materials which had been allowed to become wet which resulted in the same effect, or that it failed to provide plaintiff with watertight roofing which would not deteriorate excessively, and would perform without fail under normal conditions and with normal maintenance for twenty years after final acceptance, then it would be your duty to answer the first issue yes.
The jury answered this issue "yes," and could only do so upon a finding by it that defendant Juno had failed to comply with the plans and specifications of the architect for the construction of the roof. However, to recover damages for breach of contract, plaintiff must also prove that the breach by Juno contributed to the damages sustained by plaintiff. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). "Damages for injury that follows the breach in the usual course of events are always recoverable provided the plaintiff proves that such injury actually occurred as a result of the breach." Id. at 187, 254 S.E.2d at 616. Issue No. 1 does not present the question of causation. That question is contained in the third issue.
In this appeal, the primary dispute is not whether defendants breached their contract, but whether their breach caused the damages to the roof of plaintiff's building. Defendants contended and produced evidence that the damages to the roof were caused solely by defective designs of the architect. In this case, the court required the defendants to carry the burden of proof on the question of causation. The defendants carried that burden, and the jury resolved the issue of causation in their favor. We find no error in the court's instructions on the third issue.
The record establishes that defendant Statesville executed an "Agreement to Maintain Roofing" which required Statesville, for a period of five years after 6 August 1973, to make permanent repairs to the roof or to restore it to the quality standards originally specified. The specifications required that the roof be watertight. Plaintiff contended defendant Statesville failed to perform under its agreement to maintain the roof. This question was submitted to the jury in the second issue and answered by it, "yes." On this issue, the court instructed the jury:
(I)f the plaintiff has satisfied you by the greater weight of the evidence that the defendant, Statesville, failed to make permanent repairs at its own expense to the roof which were required because of the failure of materials or workmanship which resulted in the defects of the roofing, you will answer the second issue yes.
The third issue and the jury's answer did not relate to the second issue. The court charged the jury on the third issue:
(I)f the defendants have satisfied you by the greater weight of the evidence that defects in the roof of Freedom High School resulted solely...
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