Coble v. Richardson Corp. of Greensboro, 8418DC234
| Decision Date | 04 December 1984 |
| Docket Number | No. 8418DC234,8418DC234 |
| Citation | 71 N.C.App. 511,322 S.E.2d 817 |
| Court | North Carolina Court of Appeals |
| Parties | Carolyn T. COBLE v. RICHARDSON CORPORATION OF GREENSBORO. |
Douglas, Ravenel, Hardy, Crihfield & Lung by G.S. Crihfield and James W. Lung, Greensboro, for plaintiff-appellee.
Adams, Kleemeier, Hagan, Hannah & Fouts by M. Jay DeVaney and Thomas W. Brawner, Greensboro, for defendant-appellant.
Defendant first argues that the trial court committed reversible error in concluding that defendant breached a duty to correct a drainage problem with plaintiff's house, which duty arose out of certain written and oral representations made by defendant. We overrule the assignments of error on which this argument is based.
As to the written representations, the record contains a document entitled "Construction Warranty." This document is part of the entire, integrated contract; indeed, the defendant does not dispute that it was bound by the warranty, but rather that the trial court erred in interpreting the scope of coverage. The section titled "Non-Warrantable Items" includes the following provisions:
Waterproof Foundation--Reasonable precautions have been taken to prevent water from entering the basement or crawl space. Always remember that the best assurance for a dry basement or crawl space is to see that surface water drains away from the foundation. Water that settles around the foundation will most likely leak underneath. The homeowner should be sure to fill any settling that often occurs around a new foundation. Keep perimeter drain pipe open at outfall end of pipe. This is part of the owner's maintenance.
Grading--Your lot and surrounding lot grades were established to provide drainage away from the building. Should you wish to change the drainage pattern for some reason, be sure that a proper drainage slope is retained. Do not fill above the top of the foundation. Water may enter the typical joint between the foundation and brick or siding. Your builder assumes no responsibility for the grading if established patterns are altered or for water problems caused by improper drainage contrary to his recommendation.
The defendant contends that although the quoted provisions are found on its warranty form, because they appear in the section denominated "Non-Warrantable Items," no obligations on defendant's part are created. We disagree. Despite the title of the section, and despite the fact the section distinguishes particular situations in which defendant will not be liable to the buyer under the warranty, its provisions clearly create obligations on defendant's part. Listed under "Non-Warrantable Items" are the following statements: "We warrant that shrubs will be alive and in healthy condition at the time the owner moves into the house;" "Builder is responsible [for broken glass and torn screens] only if notified before or at time of 'walk through' inspection ...;" "[W]e will resow and remulch any washed out spots [of the lawn] ... once ... within 12 months of the closing ...." It is self-evident that those statements are express warranties creating affirmative obligations. Likewise do the statements relied upon by plaintiff, i.e., "Reasonable precautions have been taken to prevent water from entering the basement or crawl space," and "Your lot and surrounding lot grades were established to provide drainage away from the building," create obligations on defendant's part.
The defendant further argues that because the construction warranty contains a procedure for a "walk-through" of the house before closing, with defects to be noted on a request for service form, the failure of plaintiff to mention the water drainage problem on this form precluded it from subsequently raising this claim under the one-year warranty. Again, the plain language of the warranty belies defendant's argument. Nowhere in the warranty is it indicated that a defect must be noted on the request for service form during the walk-through in order for a buyer to preserve any rights, or even that the three request for service forms provided by defendant are the exclusive means of notifying the defendant of problems arising under the warranty.
The foregoing discussion disposes of defendant's suggestion that if it had any duty with respect to plaintiff's water problem, it was merely to reseed. Plaintiff timely notified defendant of a specific defect involving drainage covered by the warranty. Defendant was obligated to correct the problem. Clearly, defendant's duty was not limited to reseeding plaintiff's lawn if that failed to solve the problem.
The trial court also based its conclusion that defendant breached its duty to plaintiff to correct the water problem on oral representations made by defendant's agents prior to and at the closing. Defendant argues that the oral representations were improperly admitted into evidence, relying on the parol evidence rule and on a merger clause in the contract of sale.
Defendant has waived its right to assert the parol evidence rule, as the record reveals that defendant failed to object to the testimony at trial. Griffin v Wheeler-Leonard & Co., 290 N.C. 185, 197, 225 S.E.2d 557, 564-5 (1976) (). Even if the testimony had been properly objected to, however, neither the parol evidence rule nor the merger clause operates to exclude the oral representations.
The parol evidence rule provides that when a contract is reduced to writing, parol evidence cannot be admitted to vary, add to, or contradict the same. Hoots v. Calaway, 282 N.C. 477, 486, 193 S.E.2d 709, 715 (1973). The contract of sale between the parties contained the following provision, commonly referred to as a merger clause:
Buyer hereby acknowledges that he has inspected the above described property, that no representations or inducements have been made other than those expressed herein, and that this contract contains the entire agreement between all parties herein.
This is not a case where a party relies on a merger clause in one document to exclude another from admission into evidence. See Loving Co. v. Latham, 20 N.C.App. 318, 201 S.E.2d 516 (1974). Instead, what defendant asserts is that the oral representations plaintiff claims were made to her concerning the water problem are inconsistent with the written agreement and hence inadmissible. As discussed supra, however, the construction warranty did obligate the defendant to correct the water drainage problem. Therefore, the oral representations of defendant's agents did not "vary, add to, or contradict" the construction warranty, and the parol evidence rule does not exclude them. Likewise, the merger clause excludes representations or inducements "other than those" contained in the contract. The construction warranty was part of the integrated agreement, and as the representations of defendant's agents were consistent with its provisions, they were not barred by the merger clause.
Defendant next argues that the trial court erred in finding that $1,474.40 was the reasonable cost of correcting the water damage problem. Plaintiff testified that she hired Calvin Bryant to correct the drainage problem and to do other work, and that $1,474.40 was the portion of Bryant's total bill representing the amount she paid him to correct the water problem. Calvin Bryant testified that the cost of repairing the water problem was between $1,500 and $1,800, that this represented the reasonable cost of repair work, and that he would not have made the charges if they had not been necessary. Defendant offered evidence that a similar problem at plaintiff's neighbor was corrected for $300, and that an alternative method of repair cost $400. Based on this evidence, defendant contends that the award of damages was clearly excessive. We disagree.
In a suit for damages arising out of breach of contract, the injured party is to be placed in as near the position he or she would have occupied absent the breach. Meares v. Construction Co., 7 N.C.App. 614, 173 S.E.2d 593 (1970). That is, the injured party is to be compensated "for the loss which fulfillment of the contract could have prevented or the breach of it has entailed." Norwood v. Carter, 242 N.C. 152, 155, 87 S.E.2d 2, 4 (1955). See also, Moss v. Knitting Mills, 190 N.C. 644, 130 S.E. 635 (1925) ().
Ample competent evidence supported the finding that $1,474.40 was the reasonable cost of correcting the drainage problem. We may not disturb this...
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