Durham Lumber Co. v. Wrenn-Wilson Const. Co.

• Decision Date: 18 March 1959
• Docket Number: No. 667,WRENN-WILSON,667
• Citation: Durham Lumber Co. v. Wrenn-Wilson Const. Co., 107 S.E.2d 538, 249 N.C. 680 (N.C. 1959)
• Parties: DURHAM LUMBER COMPANY, Inc. v.CONSTRUCTION COMPANY.
• Court: North Carolina Supreme Court

Page 538

107 S.E.2d 538

249 N.C. 680

DURHAM LUMBER COMPANY, Inc. v.WRENN-WILSON CONSTRUCTION COMPANY.

No. 667

Supreme Court of North Carolina.

March 18, 1959

Bryant, Lipton, Strayhorn & Bryant, Durham, for plaintiff, appellee.

E. C. Brooks, Jr., and Eugene C. Brooks, III, Durham, for defendant, appellant.

BOBBITT, Justice.

Where a building contract is substantially, but not exactly, performed, the amount recoverable by the contractor depends upon the nature of the defects or omissions.'Where the defects or omissions are of such a character as to be capable of being remedied, the proper rule for measuring the amount recoverable by the contractor is the contract price less the reasonable cost of remedying the defects or omissions so as to make the building conform to the contract.'Annotations: 134 Am.St.Rep. 678, 684; 23 A.L.R. 1435, 1436;38 A.L.R. 1383;65 A.L.R. 1297, 1298.

In an action to recover the unpaid portion of the contract price, the defendant, under his denial of plaintiff's alleged performance, may show, in diminution of plaintiff's recovery, the reasonable cost of supplying omissions, if any, and if remedying defects, if any; and, if such costs exceed the unpaid portion of the contract price, the defendant may, by counterclaim, recover the amount of such excess.Howie v. Rea, 70 N.C. 559;Moss v. Best Knitting Mills, 190 N.C. 644, 130 S.E. 635;Mason v. Town of Andrews, 192 N.C. 135, 133 S.E. 402.

While under certain circumstances quantum meruit may be the measure of recovery, R. A. Poe & Co. v. Town of Brevard, 174 N.C. 710, 94 S.E. 420, 'when it is said that in cases in this character the plaintiff may recover on a quantum meruit or valebat, nothing more is intended than that he may recover whatever he may be entitled to, not exceeding the price fixed by the special contract.'Annotation: 134 Am.St.Rep. 678, 685.

The general rule stated above is applicable here.Everything required to be done under the contract has been fully performed.If plaintiff breached its contract in respect of omissions or defects, defendant has supplied the omissions and has remedied the defects.The controversy turns on whether it had the right to do so for the account of plaintiff.If so, defendant is entitled to 'back charge'(defendant's expression) all reasonable amounts expended for such purpose.

The agreed case on appeal states: 'The contract price between the plaintiff and the defendant, including certain extras, amounted to $19,103.08.The defendant paid to said plaintiff or received credit for all of said sum of money with the exception of $3,123.45.'(Note: The record discloses that plaintiff has given defendant full credit for plaintiff's failure to comply with the contract in respect of certain items not involved in this controversy.)

Nothing else appearing, plaintiff was entitled to recover $3,123.45; but, under its (controverted) allegations, defendant was required to pay $3,774.48 to supply omissions and to remedy defects caused by plaintiff's failure to perform its contract obligations.

Defendant's assignments of error are based on exceptions to the issues and to the court's instructions as to burden of proof and other features.

G.S. § 1-200 requires that the court submit such issues as are necessary to settle the material controversies arising on the pleadings, including new matter alleged in the answer, so that the answers thereto will support a final judgment.Coulbourn v. Armstrong, 243 N.C. 663, 91 S.E.2d 912, and cases cited.'Ordinarily the form and number of the issues in the trial of a civil action are left to the sound discretion of the judge and a party cannot complain because a particular issue was not submitted to the jury in the form tendered by him.'Griffin v. United Services Life Insurance Co., 225 N.C. 684, 36 S.E.2d 225, 226;O'Briant v. O'Briant, 239 N.C. 101, 79 S.E.2d 252, and cases cited.

Whether, considering the pleadings and the agreed facts, the first issue was necessary, need not be decided.Suffice to say, the submission of the first issue and the court's instructions thereon do not disclose prejudicial error; for the court made it quite plain that the issues were interrelated and that the respective rights of the parties in relation to the six controverted items would be determined, as was done, by the jury's answers to the subsequent issues.

An answer to the single issue tendered by defendant would have determined what amount, if any, defendant was entitled to recover from plaintiff on its alleged counterclaim for $651.45.The burden of proving its counterclaim was on defendant.Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16.If this single issue had been submitted, defendant, to be entitled to an answer in its favor, would have been required to show that plaintiff had breached its contract in respect of one or more of said six specific items and that the reasonable cost of supplying the omissions and of remedying the defects exceeded $3,123.45.The mere fact that the court, in its discretion, submitted a separate issue as to each of the six specific items in controversy would seem insufficient to affect the burden of proof; for these six issues, considered together, presented for determination the identical questions that would have been presented if the issue tendered by defendant had been submitted.

Here we need not determine the rule applicable if defendant had alleged the six controverted items solely as a defense, that is, in diminution of the amount plaintiff was entitled to recover.The issues submitted (except the first) arise on the allegations of defendant's 'Further Answer, Defense And Counterclaim' and plaintiff's reply thereto.The six controverted items are not alleged solely as a defense but are alleged as the basis for a recovery by defendant from plaintiff.Certainly the burden of proof is not divisible so that it would rest on plaintiff up to $3,123.45 and on defendant for any amount in excess of $3,123.45.Under the pleadings and admitted facts, when defendant elected to allege and to prosecute its counterclaim on the basis of the six controverted items, it thereby assumed the burden of proof with reference thereto for all purposes.CompareHamlet Ice Co. v. J. A. Jones Construction Co., 194 N.C. 407, 139 S.E. 771.

In considering the court's instructions relating to issues 2-7, inclusive, these facts are noted:

1.As to issues 2, 3, 4, 5 and 7, the court placed the burden of proof on defendant.As to issue 6, the court's instructions as to burden of proof will be discussed below.

2.The items involved in issues 2, 3, 4, 5 and 7 relate to alleged omissions.The item involved in issue 6 relates to alleged defective performance.

3.The third issue was answered in defendant's favor for the full amount ($243.87) alleged.The judgment gives defendant full credit therefor.

Unquestionably, as defendant contends, when the terms of a written contract are explicit, the legal obligations of the respective parties are determinable as questions of law.Howland v. Stitzer, 240 N.C. 689, 696, 84 S.E.2d 167, and cases cited.The general rule, well established, is thus summarized in Wallace v. Bellamy, 199 N.C. 759, 763, 155 S.E. 856, 859, as follows: 'In the interpretation of contracts the general rule is that a court will not resort to construction where the intent of the parties is expressed in clear and unambiguous language; but, if the terms are equivocal or ambiguous, the jury may, in proper cases, determine the meaning of the words in which the agreement is expressed.'

The application of this general rule depends upon the facts of each case.For the reasons indicated below, the court did not err in failing to construe the contract in defendant's favor as a matter of law.

Defendant emphasizes this sentence in its purchase order of June 16, 1954: 'Your relations to us will be in every way the same as our relations to the Architect and the Owner.'We do not think this sentence may be reasonably construed as imposing upon plaintiff the obligation to do more than to furnish in accordance with the architect's plans and specifications the particular items covered by its written contract with defendant.

As to the second...