Keel v. East Carolina Stone & Construction Co.

• Decision Date: 22 December 1906
• Citation: 55 S.E. 826,143 N.C. 429
• Parties: KEEL v. EAST CAROLINA STONE & CONST. CO. et al.
• Court: North Carolina Supreme Court

55 S.E. 826

143 N.C. 429

KEEL v. EAST CAROLINA STONE & CONST. CO. et al.

Supreme Court of North Carolina

December 22, 1906

Appeal from Superior Court, Wayne County; Webb, Judge.

Action by X. T. Keel against the East Carolina Stone & Construction Company and others. From a judgment in favor of plaintiff defendants appeal. Modified and affirmed.

A contract for the construction of a building required that the owner pay the contractor $950 when the walls should have been erected to the second story, and $1,000 when the building should have been covered, and required the owner to execute four notes for $1,000, secured by mortgage on the land and premises. After the building had been erected to the second story and the owner had paid $950, it was destroyed by fire except that the walls remained standing and it appeared that the walls were worth $500. The contractor refused to proceed with the construction of the building. Held, that the contract was divisible and owner was entitled to have the four notes, canceled but not entitled to recover the $950 nor was anything due defendant by reason of the value of the standing walls.

There was evidence tending to show: That defendant contracted and agreed to furnish material and build and construct for plaintiff, on a lot owned by plaintiff, in Mt. Olive, N. C a three-story building, at a contract price of $5,950, according to dimensions and stipulations set forth in the contract; said building to be completed on or before August 1, 1905. That on the 22d of August, 1905, when the house was erected to a point where the roof was about half covered, this storehouse was accidentally, and without fault on the part of plaintiff or defendant, destroyed by fire. That plaintiff, described as party of the second part in the contract, agreed to pay for the building, as follows: "The said party of the second part agrees to pay the said sum of $5,950.00 as follows: $950.00 when the walls of said building shall have been erected to the second story; $1,000.00 when said building shall have been covered; 1,000.00 on August 1, 1906; $1,000.00 on August 1, 1907; $1,000.00 on August 1, 1908; and $1,000.00 on August 1, 1909; said last four payments of $1,000.00 each to be evidenced by four notes, drawing interest from the 1st day of August, 1905, at the rate of 6 per cent. per annum, secured by first mortgage on said land and premises hereinbefore referred to. And the said party of the first part hereby stipulates and guarantees that it will complete the erection as per contract, of said building, on or before August 1, 1905." That plaintiff executed and delivered the four notes for $1,000 each in March, 1905, in accordance with the terms of the contract, and, when the walls of the building had been erected to the second story, plaintiff paid the defendant the $950 as per stipulation. That these notes had been deposited by defendant company with the National Bank of Goldsboro as collateral for money advanced by the bank to defendant company, and so held by said bank without indorsement. That the defendant company had failed and refused to go on and complete the building. That the value to plaintiff of the walls left standing on the lot after the fire was $500. On these facts admitted and established by the verdict of the jury, the court entered judgment as follows: "It is thereupon, on motion of counsel for the plaintiff, considered and adjudged by the court, that the defendants East Carolina Stone & Construction Company, and the National Bank of Goldsboro, cancel and deliver up the four notes of one thousand dollars each, executed by the said X. T. Keel to the said East Carolina Stone & Construction Company, and the mortgage securing the payment of the same, and that the plaintiff, X. T. Keel, recover of the defendant East Carolina Stone & Construction Company, the sum of four hundred and fifty ($450.00) dollars, and the costs of this action to be taxed by the clerk. It is further considered, ordered, and adjudged by the court that the restraining order herein be made perpetual." Both plaintiff and defendant excepted, the defendant alone perfecting its appeal.

Aycock & Daniels and M. T. Dickinson, for appellants.

Dortch & Barham and W. C. Munroe, for appellee.

HOKE J. (after stating the case).

When one contracts with the owner of a lot to furnish all the materials and build and construct a house thereon for a certain...