Childress v. C. W. Myers Trading Post, Inc.

• Decision Date: 20 November 1957
• Docket Number: No. 394,394
• Citation: 247 N.C. 150,100 S.E.2d 391
• Court: North Carolina Supreme Court
• Parties: Clyde E. CHILDRESS and wife, Edith Childress, v. C. W. MYERS TRADING POST, Inc.

Page 391

100 S.E.2d 391

247 N.C. 150

Clyde E. CHILDRESS and wife, Edith Childress, v. C. W. MYERS TRADING POST, Inc.

No. 394

Supreme Court of North Carolina.

Nov. 20, 1957

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for plaintiff appellees.

Deal, Hutchins & Minor, WinstonSalem, for defendant appellant.

RODMAN, Justice.

Notwithstanding the reduction of the contract to writing, the parties are not in agreement as to the terms of the original contract. Was the house to be 30 feet or 28 feet wide? The writing is specific as to length but silent as to width. Was the fireplace to be installed over a full-size basement as the writing says, or was the fireplace to be installed in a full-sized basement and the house insulated over head? If plaintiffs' version of the contract is correct, defendant has admittedly breached the contract. Neither of these conditions has been met.

Did the parties subsequently and by parol agree, (a) to change the color of the tile in the bathroom, (b) to change the color of the brick and mortar on the exterior, and (c) to extend the time for the completion of the house? If the parties did not agree to these changes, the contract has admittedly been breached.

Did defendant fail to do the work in a first-class manner by providing defective and inadequate foundations and support for the house or roof?

If the defendant breached its contract in some but not all of these particulars, was the breach of such a character as to justify a rescission, restoring to plaintiffs their property or its value, or could plaintiffs be fairly compensated by an award of damages?

These questions arose on the pleadings and the evidence. They required answers before the rights of the parties could be determined. The court elected to submit only two issues to the jury, namely breach and damages. This restriction, it seems to us, unnecessarily complicated the problem of correctly instructing the jury.

That portion of the contract binding the parties to buy and sell had to be in writing because the statute so provides, but the portion relating to the kind of dwelling to be erected, its size, the materials to be used, and the time for completion could rest in parol, and this is true notwithstanding the provisions of section 3 of the written contract.

'The provisions of a written contract may be modified or waived by a subsequent parol agreement, or by conduct which naturally and justly leads the other party to believe the provisions of the contract are modified or waived. H. M. Wade Mfg. Co. v. Lefkowitz, 204 N.C. 449, 168 S.E. 517; Bizler Co. v. Britton, 192 N.C. 199, 134 S.E. 488. This principle has been sustained even where the instrument provides for any modification of the contract to be in writing. Allen Bros. v. Raleigh Sav. Bank, 180 N.C. 608, 105 S.E. 401.' Whitehurst v. FCX Fruit & Vegetable Service, 224 N.C. 628, 32 S.E.2d 34, 39.

Defendant alleged in its answer and offered evidence to support its allegation that the delay in completing the house was approved by plaintiff. Touching this question and the materiality of delay as affecting the rights of the parties, the court charged the jury: 'Now, members of the jury, one of the provisions in the written contract was as to the time that the house was to be completed. The question, whether a contract must be performed at or within the exact time specified therein, is usually expressed in the inquiry as to whether the time is of the essence of the contract. Where the time is of the essence of a contract and there has been a failure of performance at or within the time promised, a breach of the contract results, which brings some of the consequences attendant upon a breach. The right to recover on a contract is conditioned upon performance within the time limit, where time is of the essence.

'Now, members of the jury, the plaintiffs say and contend that in this contract time is of the essence; that there wasn't any point in putting that in the contract if it didn't mean something, and that certainly the defendant didn't deliver in accord with those terms.'

The quoted portion of the charge was made the subject of exceptions by defendant. Following these statements of the law and contentions of the plaintiffs the court charged the jury that the defendant contended that plaintiffs had waived the provision of the contract requiring delivery by 21 August. It then charged: 'Now, members of the jury, the Court charges you that if you are satisfied from this evidence and by its greater weight that this contract was breached on the part of the defendant, that the defendant couldn't deliver according to the terms of the contract, then it would be your duty to answer that first issue Yes. If you are not so satisfied, you would answer it No.'

Dealing with defendant's assertion of verbal modifications and waiver as to manner and time of construction, the court charged the jury: 'Now, members of the jury, the Court instructs you that, although the written contract between the parties, that is Plaintiffs' Exhibit A, is the written contract and provided that any substantial variations from the terms of the contract should be in writing, it was nevertheless permissible for the parties to the written agreement to waive that, or any other provision of the contract, and orally to agree to change the plans and specifications for the house, to be constructed by the defendant. In other words, members of the jury, if, after the written instrument was signed by the parties they orally agree to changes that were not substantial changes, that that would be all right; it would be considered as a part of the contract.' (Italics added.)

The quoted portion of the charge in effect told the jury only nonsubstantial changes in the contract could be made by parol and only such of these as related to plans and specifications.

Time...