Lester Bros., Inc. v. J. M. Thompson Co., 459

• Decision Date: 31 January 1964
• Docket Number: No. 459,459
• Citation: 261 N.C. 210,134 S.E.2d 372
• Court: North Carolina Supreme Court
• Parties: LESTER BROTHERS, INC., Plaintiff, v. J. M. THOMPSON COMPANY, Defendant.

Page 372

134 S.E.2d 372

261 N.C. 210

LESTER BROTHERS, INC., Plaintiff, v. J. M. THOMPSON COMPANY, Defendant.

No. 459

Supreme Court of North Carolina.

Jan. 31, 1964

Broaddus, Epperly & Broaddus, Martinsville, Va., and Bryant, Lipton, Bryant & Battle, Durham, for plaintiff appellee.

Manning, Fulton, Skinner & Hunter, Raleigh, for defendant appellant.

BOBBITT, Justice.

Plaintiff's Exhibit No. 2, a blueprint of the 'Trussed Rafter Detail,' shows a completely assembled truss. On said blueprint, under the heading, 'Notes,' the following appears: '2. Trussed Rafters: All lumber for rafters to be No. 1, S4S, southern pine with grade mark on each piece. Timber connectors to be 2 1/2' diameter split rings & trip-L-grip framing anchors to be as manufactured by the Timber Engineering Co. Bolts to be 1/2' machine bolts with 2' x 2' x 1/8' plate or 2 1/8' diameter steel washers each end. Timber connectors to be installed according to the manufacturers instructions. Trussed rafters to be closely fitted and accurately fabricated and erected as shown. Bolts thru connectors to be tight. Check & tighten if necessary at time of erection. Provide additional bracing as required for erection.'

It seems that trip-L-grip framing anchors were for use in the process of anchoring the trusses to wall plates when installing the trusses in the roofs of the buildings. The lumber, split rings, bolts and washers are referred to in the following general description of a 'split ring type 'W' truss' as depicted in the plans and other evidence.

The lumber portion of a truss consisted of a bottom chord (base), two top chords (rafters) and four braces. All chords were made of 2 x 6's. All braces were made of 2 x 4's. Except in a comparatively few instances when it was otherwise specified, the overall length of the bottom chord was 28 feet and 4 inches. Testimony as to the weight of each truss varied from a minimum of 100 to a maximum of 250 pounds.

The top chords extend upward (diagonally) from the ends of the bottom chord, meet at an elevation above the center of the bottom chord and form a triangle of which the bottom chord is the base and the top chords are the sides. From each side of the bottom chord and at an equal distance from the center thereof, a (primary) brace extends upward to the vertex of said (outer) triangle, converging there with the upper ends of the top chords and forming an inner triangle of which the central portion of the bottom chord is the base and these primary braces are the sides. From where the lower end of each primary brace joins the bottom chord a (secondary) brace extends to and joins the top chord on its side of the outer triangle, forming an inverted triangle of which a portion of the top chord is the base and a primary brace and a secondary brace are the sides. When viewing a completely assembled truss standing upright on the bottom chord, the appearance of the braces resembled the letter 'W.'

To make the indicated connections, holes were bored as follows: (1) At each end of the bottom chord; (2) at each end of the top chords; (3) at each end of the primary braces; (4) at the lower end of each secondary brace; and (5) in the bottom chord, on each side of the center, where the lower ends of the secondary braces connect with the bottom chord.

Where said holes are bored, two or more pieces of lumber are connected and bolted together in this manner: Between two connecting pieces of lumber there is placed (in a groove made for that purpose) a metal 'split ring,' having 'a split in them so they can open or close up and fit in the holes.' A bolt passes through the holes and split rings and is fastened by a nut. In each instance, a washer is placed between the head of the bolt and the (first) piece of lumber on one side and between the nut and the (first) piece of lumber on the opposite side.

The secondary braces are connected with the chords in a different manner: The upper ends of these secondary braces, to which 'scabs' are nailed, are connected by nailing the 'scabs' to the top chords. A 'scab' is '(a) short piece of timber nailed or bolted to two abutting timbers to splice them together.' Webster's New International Dictionary, Second Edition.

It seems the bottom chord was composed of two pieces of lumber of equal length, overlapping and bolted together (split rings and bolts being used in the process) so as to constitute one continuous piece of lumber. However, the evidence is unclear as to details.

The trusses were constructed at plaintiff's factory at Martinsville, Virginia, and transported therefrom to the job site in Raleigh on plaintiff's trucks. While certain trusses were rejected by the architect's inspector and replaced as stated below, 2598 trusses constructed by plaintiff were used by defendant and incorporated in the buildings constituting the Walnut Terrace Housing Project. Defendant alleged plaintiff's men at plaintiff's expense 'completely assembled 210 of the trusses on the job site.' The main controversy is whether the remaining 2388 used by defendant were 'completely assembled' within the meaning of the contract upon arrival by truck at the job site in Raleigh.

There is no controversy as to the facts concerning the extent the trusses were assembled when loaded on plaintiff's trucks in Martinsville and upon arrival at the job site in Raleigh. Each truss was 'in a folded position similar to closing up a knife.' The lower ends of the top chords and of the braces were connected with the bottom chord by bolts through split rings. These bolts were loose enough to permit the upper portion of the top chords and of the braces to fold over onto the bottom chord. Metal bands were wrapped around each unit to hold the several parts together during shipment.

After unloading and removal of the metal bands, the following work was required to complete the assembly of a truss. The upper ends of the top chords and of the primary braces had to be brought together and connected at the vertex of the outer triangle. Split rings, bolts, nuts and washers for such use were shipped separately (ordinarily on the same truck) and delivered to defendant in boxes or burlap bags. The bolt for use at this location is referred to as 'the king pin.' Too, the scab on the upper end of each secondary brace had to be brought into position and nailed (four nails) to the upper chord. In addition, the bolts at said connections, four in the bottom chord as well as 'the king pin,' had to be tightened.

We deem it unnecessary to discuss the conflicting evidence as to the effort and time required to complete at the job site the assembly of a truss. There was evidence for plaintiff tending to show 'three experienced men could erect one in five minutes.' (Our italics) There was evidence for defendant tending to show it took two carpenters and two laborers 'a half hour for each truss--that wouldn't miss it two minutes.'

There was evidence that only 15 completely assembled trusses, that is, trusses ready for immediate use, could be transported per truckload, but when in 'folded' position as many as 75 trusses could be transported per truckload.

'Parties have the legal right to make their own contract, and if the contract is clearly expressed, it must be enforced as it is written.' Barham v. Davenport, 247 N.C. 575, 578, 101 S.E.2d 367, 369, and cases cited. And, 'where the language of a contract is free from ambiguity, the ascertainment of its meaning and effect is for the court, and not for the jury.' Young v. Southern Mica Co., 237 N.C. 644, 648, 75 S.E.2d 795, 798, and cases cited; Bishop v DuBose, 252 N.C. 158, 161, 113 S.E.2d 309; Robbins v. C. W. Myers Trading Post, 253 N.C. 474, 478, 117 S.E.2d 438.

The contract, in express terms, obligated plaintiff to deliver the trusses to defendant at the job site 'completely assembled per plans and specifications.' The presumption is that these words 'were deliberately chosen and are to be given their ordinary significance.' Briggs v. American & Efird Mills, Inc., 251 N.C. 642, 644, 111 S.E.2d 841, 843, and cases cited.

The writing in which the terms of the contract are stated is in the form of a letter dated February 11, 1958, from plaintiff (signed by L. P. Fore, District Representative) to defendant. The proposal or offer set forth in said letter was accepted in behalf of defendant by J. E. Merritt. It is 'a rule of construction that an ambiguity in a written contract is to be inclined against the party who prepared the writing. Wilkie v. New York Mutual Life Ins. Co., 146 N.C. 513, 60 S.E. 427.' Jones v. Palace Realty Co., 226 N.C. 303, 305, 37 S.E.2d 906, 907; Salem Realty Co. v. Batson, 256 N.C. 298, 307, 123 S.E.2d 744; Wachovia Bank & Trust Co. v. Medford, 258 N.C. 146, 149, 128 S.E.2d 141.

In Webster's New International Dictionary, Second Edition, we find this definition of the verb 'assemble': '3. To collect and put together the parts of; as, to assemble an automobile, airplane, watch, or gun.' Too, we find this definition of the verb 'complete': 'To bring to a state of entirety of perfection; to perfect; to furnish or equip fully; to fulfill; finish; as, to complete a task.' 'Completely' is the adverb of the verb 'complete.'

When the words used are given their ordinary significance, we think the plain and unambiguous meaning of the quoted contract provision obligated plaintiff to deliver the trusses to defendant at the job site in Raleigh in such condition that they conformed to the plans and specifications and were suitable for immediate use without further action with reference to assembling the parts thereof. The contract provision relates solely to the condition of the trusses when delivered by plaintiff to defendant at the job site. Whether the trusses were to be completely assembled at Martinsville or assembled in part at Martinsville and in part at the job site was for decision according to plaintiff's preference.

'The necessity in pleading of the...