Moss v. Mills

• Citation: 130 S.E. 635
• Decision Date: 09 December 1925
• Docket Number: (No. 492.)
• Parties: MOSS. v. BEST KNITTING MILLS.
• Court: North Carolina Supreme Court

130 S.E. 635

MOSS.

v.BEST KNITTING MILLS.

(No. 492.)

Supreme Court of North Carolina.

Dec. 9, 1925.

(190 N. C.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Acceptance.]

[Ed. Note.—For other definitions, see Words and Phrases, Second Series, Substantial Compliance.]

Appeal from Superior Court, Catawba County; Stack, Judge.

Action by L. L. Moss against the Best Knitting Mills to recover balance due on a building contract. Judgment for plaintiff on original cause of action and counterclaim, and defendant appeals. No error.

The parties admitted the contract in the pleadings as follows:

"That the defendant, being desirous of enlarging its manufacturing plant, contracted with the plaintiff to furnish the material and perform the work and agreed to pay the plaintiff the price of the labor and material plus 10 per cent, for his personal supervision."

Plaintiff claimed a balance due on this contract, and defendant denied that plaintiff had performed the contract, and alleged on account of his failure to discharge his duty the defendant had suffered damages.

The jury returned the following verdict:

"(1) In what amount, if any, is the defendant indebted to the plaintiff for labor, materials, and supervision of work? Answer: $918.

"(2) In what amount, if any, is plaintiff indebted to the defendant on its counterclaim? Answer: None."

John C. Stroupe and Self & Bagby, all of Hickory, for appellant.

M. H. Yount and A. A. Whitener, both of Hickory, for appellee.

VARSER, J. The plaintiff contended that he had performed the contract on his part, with reasonable skill, and in a workmanlike manner, and that whatever defects that may have later appeared, he offered, with dispatch, to remedy, and that all building, both as to labor, and material, was done under the personal observation of one of defendant's owners, one Hollar, and that the building was, when completed, accepted, and payments made to him, and the reason first given for not paying the balance was that the defendant did not have enough money.

The defendant insisted that the work was done in a negligent manner, and that plaintiff knew when he entered into the contract that the building, an addition to a knitting mill, was to be used for mill purposes, and that heavy and valuable machinery would be put therein. Defendant also contended that the wall gave way, the roof leaked, and damage had resulted therefrom.

Defendant's first assignment of error is to the admission in evidence from plaintiff the statement "that he (plaintiff) does a volume of $125,000 worth of business a year." Plaintiff is a building contractor. He further says:

"I live at Hickory, N. C. I have lived there 39 years. My work during that time has been carpenter's work, and construction. In connection with this construction work, I run a lumber plant and planing mills. I do furnish the material for the houses I build."

The defendant's exception does not single out the statement as to volume of business. This is not evidence of good character as a defense to a charge of fraud (Norris v. Stewart, 105 N. C. 455, 10 S. E. 912, 18 Am. St. Rep. 917; Wilson Lumber Co. v. Atkinson, 162 N. C. 298, 78 S. E. 212, 49 L R. A. [N. S.] 733), nor as a defense in wrongful arrest (Sigmon v. Shell, 165 N. C. 582, 586, 81 S. E. 739), nor is it evidence of reputation as to skill and intelligence, as in case of a civil engineer who directed the building of a culvert (Emery v. Raleigh & G. R. Co., 102 N. C. 209, 227, 9 S. E. 139, 11 Am. St. Rep. 727). It was not offered to prove good character or reputation. For that purpose it is clearly incompetent. We think, however, the evidence competent for the jury to consider in determining the weight to be given the plaintiff's testimony as to his performance of the contract. Experience frequently differentiates the probative value of one witness from that of another. It shows his "experiential capacity." Wig-more on Evidence (2d Ed.) § 555 et seq.

Assignment No. 2 is to the admission of the testimony of plaintiff that Lon Hollar "accepted" the building, and to the charge giving plaintiff's contention that he put up the building and there was no "kick" on the material, and when he rendered his itemized statement, the prices were not objectionable to defendant. Lon Hollar was one of the owners of the defendant, in charge of its business. Acceptance may be thus proved: It is a fact, with a mental act of intent to receive as one's own, or for the owner, as a compliance with the required duty of the offerer—here the builder. Black's Law Dict. (2d Ed.) 12. It may relate to a building, or personal property, or other thing which is offered actually or constructively. Rodgers v. Phillips, 40 N. Y. 524; Snow v. Warner, 10 Mete. (Mass.) 132, 43 Am. Dec. 417. Receiving the building was an acceptance in Pipkin v. Robinson, 48 N. C. 152. Acceptance may be expressed or implied from the conduct of the owner. Burnett Cigar Co. v. Art Wall Paper Co., 164 Ala. 547, 560, 51 So. 263;' Walstron v. Construction Co., 161 Ala. 608, 618, 50 So. 46; Waters v. Harvey, 8 Del. (3 Houst.) 441; Palmer v. Meriden, 188 111. 508, 59 N. E. 247; Bozarth v. Dudley, 44 N. J. Law, 304, 43 Am. Rep. 373; Otis Elevator Co. v. Flanders Realty Co., 244 Pa. 186, 90 A. 624. The owner may by word, or act, or failure to act or speak, accept. Walstron v. Construction Co., supra. Whether it is an acceptance is generally a question of fact (Gray v. James, 128 Mass. 110; Fuller v. Brown, 67 N. H. 188, 34 A. 463; Colby v. Franklin, 15 Wis. 311), and therefore provable by parol evidence. The right of cross-examination is protection to the adverse party against a statement of a conclusion, and not a fact. The ruling as to evidence and the charge are correct. Acceptance implies satisfaction and waives many rights. 9 C. J. 796.

The defendant's assignments of error 3 and 4 are directed to the court's refusal to admit evidence as to defendant's loss from damage to yarns due to a leak in the roof, waste of material, and injury to machine on account of effect of sinking of building, and the loss of profits.

The contract was that plaintiff furnish labor and material and supervise construction. No architect's plans and specifications were had.

Lon Hollar testified:

"I was there some time during every day; that is, every day-part of the time, and some days all day. I was manager of the mill. I am over the superintendent. I am the owner. I was there and saw the work going on and saw some of the material being used. I could have seen all of it. I saw the men that worked there. I saw when they came and what they were doing. Mr. Fry did the grading for the foundation for me. There was an old cesspool where the building is. Mr. Fry covered up the cesspool. There was concrete around it. I did not think that that would be liable to sink. Mr. Moss said he would fix that. Sure, I knew it was there and knew they were covering it up. He (Mr. Fry) did the grading for me. That is where one of the pillars is that sank, but there are several other pillars that sank."

He further says:

"After the building was completed and Mr. Moss left there, we moved the machinery in. I don't know what caused the roof to leak."

We do not think the contract and these facts present any legal basis for the testimony offered. The court charged that it was plaintiff's duty to use ordinary skill in the construction, and that if he failed in this respect defendant would be entitled to recover the cost of putting the building in proper condition.

It is the duty of the builder to perform his work in a proper and workmanlike manner. Byerly v. Kepley, 46 N. C. 35; Electric Supply Co. v. Electric Eight Co., 186 Mass. 449, 71 N. E. 983; Gillis v. Cobe, 177 Mass. 584, 59 N. E. 455; Smith v. Clark, 58 Mo. 145; Gwinnup v. Shies, 161 Ind. 500, 69 N. E. 158; Mayer Ice Machine Co. v. Van Voorhis, 88 N. J. Law, 7, 95 A. 735. This means that the work shall be done in an ordinarily skillful manner, as a skilled workman should do it. Fitzgerald v. LaPorte, 64 Ark. 34, 40 S. W. 261; Ideal Heating Co. v. Kramer, 127 Iowa, 137, 9 C. J. 750, 102 N. W. 840.

There is an implied agreement such skill as is customary (Somerby v. Tappan, Wright [Ohio] 229) will be used. In order to meet this requirement, the law exacts ordinary care and skill only. Doster v. Brown, 25 Ga. 24; Whitcomb v. Roll, 40 Ind. App. 119, 81 N. E. 106; Independent School Dist. v. Swearngin, 119 Iowa, 702, 94 N. W. 206; Peacock v. Gleesen, 117 Iowa, 291, 90 N. W. 610 (only reasonable diligence in drilling well); Hartford Co. v. Tobacco W. Co. (Ky.) 121 S. W. 477; Giles v. Robinson, 114 Me. 552, 96 A. 745; Cunningham v. Hall, 4 Allen (Mass.) 268; Holland v. Rhoades, 56 Or. 206, 106 P. 779; Fletcher v. Seekell, 1 R. I. 267; Stanton v. Dennis. 64 Wash. 85, 116 P. 650. Manner of best builders not required in absence of specifications. Blodgett Const. Co. v. Cheney Lumber Co., 129 La. 1057, 57 So. 369. Measured by the rule clearly deducible from the foregoing authorities, we hold that the challenged rulings of the trial court are correct.

Under instructions, free from error, the jury has necessarily found that plaintiff has...