Robbins v. C. W. Myers Trading Post, Inc.

• Decision Date: 14 December 1960
• Docket Number: No. 395,395
• Citation: 117 S.E.2d 438,253 N.C. 474
• Court: North Carolina Supreme Court
• Parties: J. G. ROBBINS and wife, Faith P. Robbins, v. C. W. MYERS TRADING POST, INC.

Page 438

117 S.E.2d 438

253 N.C. 474

J. G. ROBBINS and wife, Faith P. Robbins, v. C. W. MYERS TRADING POST, INC.

No. 395

Supreme Court of North Carolina.

Dec. 14, 1960

Eugene H. Phillips, Winston-Salem, for defendant, appellant.

Leake & Phillips and Wood & Stone, Winston-Salem, for plaintiffs, appellees.

PARKER, Justice.

This case was here on a former appeal by defendant, and a new trial was awarded, because of the admission of incompetent evidence. Robbins v. C. W. Myers Trading Post, 251 N.C. 663, 111 S.E.2d 884, 886.

The pleadings of the parties, consisting of a complaint and answer, in both trials are identical. The complaint alleges that defendant contracted to construct for plaintiffs on their land 'a dwelling house according to certain plans and specifications and 'complete in a satisfactory manner and as a first class turn-key job, the entire construction of said dwelling'' for $10,000.00, the completion of the house, the delivery of possession of it to plaintiffs, the payment by plaintiffs of the contract price, and breach of the contract by defendant in that the house was not a first class turn-key job and satisfactory for the reason that inferior materials and workmanship were used in its construction. Defendant in its answer admits the execution of the contract, the payment of the purchase price, denies that the materials used and the workmanship were inferior, and avers that the contract was performed in accord with the terms thereof.

The contract was in writing. It was introduced in evidence by plaintiffs, and read to the jury. Its relevant parts are: 'Builder agrees to commence and complete in a satisfactory manner and as a first class turn-key job the entire construction of said dwelling * * *; It Being Understood And Agreed that said dwelling shall be exactly like house built on Endsley Ave. house #13, except house is to have one-half brick front with the rest of the house planked up and down, house to have screens installed, full basement with no garage, oil heat to each room, tile bath to have the choice of the color of the tile in bath and kitchen, knotty pine paneling inside, fireplace in the basement and upstairs, planked up and down just like Endsley Ave. house #13 on the corner, house to have a straight roof. * * * To be the same size house but the kitchen is to be 2 foot bigger and the bedroom smaller. To use the same kind of material used in Endsley Ave. house #13. * * * It is agreed that any substantial variation from this contract to be binding shall be in writing and signed by the parties hereto.'

A. E. Gentry, a contractor and builder, who has built about eight houses a year for six or eight years, was a witness for plaintiffs. He testified on direct-examination that in his trade and business he knew what a first class turn-key job was. He was then asked what he would consider a first class turn-key job to be. Defendant assigns as error the admission of his answer over its objection as follows: 'Well, it would be in a first class manner; in other words, your joints would be fitted good where you join pieces together, and you would be using a good material, that wouldn't be chipped out or knotty, full of knots, or holes, knotholes, rather.' Defendant further assigns as error that Gentry on direct-examination was permitted to testify that it would cost $4,600.00, in his opinion, to repair the Robbins' house and put it in the condition that the contract calls for. Gentry testified on cross-examination: 'I testified in giving my interpretation of the contract, that first class workmanlike manner and turn-key job contemplated both the best materials and the best workmanship. Your workmanship can still be first class if you don't have good materials altogether. But the end result, if inferior materials are used, still would not measure up to what you would think of a first class job. All of the materials in the house on Endsley Avenue are not of first grade quality.'

Plaintiffs do not assail the building contract on the ground of fraud or mistake. This action is on the building contract as written. In order to determine the rights of the parties, it is essential that we consider the written building contract.

The Court in its opinion on the former appeal said: 'The contract provides that the building 'shall be exactly like house built on Endsley Ave. house #13' (with minor exceptions) and shall be constructed of 'the same kind of material used in Endsley Ave. house #13.' These are the plans and specifications.'

In the first appeal there was no evidence in the record as to the meaning in the building trade of 'a first class turn-key job the entire construction of said dwelling,' as there is in the evidence in the second appeal. This Court said in Nantahala Power & Light Co. v. Moss, 220 N.C. 200, 17 S.E.2d 10, 16, quoting from Walter, Brief-Writing and Advocacy, p. 78: "Courts repeatedly have held that the language of their opinions must be read in connection with the facts of the case in which the language was used.' ' Bearing this well settled principle of law in mind it is plain that the Court on the former appeal did not consider and decide the legal effect and meaning of the words 'a first class turn-key job the entire construction of said dwelling' as used in the written contract and as used in connection with all the other words in such contract.

'A contract must be construed as a whole, and the intention of the parties is to be collected from the entire instrument and not from detached portions, it being necessary to consider all of its parts in order to determine the meaning of any particular part as well as of the whole. Individual clauses in an agreement and particular words must be considered in connection with the rest of the agreement, and all parts of the writing, and every word in it, will if possible, be given effect. The foregoing rules are applicable in the interpretation of building and construction contracts.' 17 C.J.S. Contracts § 297.

The building contract provides, 'it is understood and agreed that said dwelling shall be exactly like house built on Endsley Ave. house #13,' with a number of changes specified in the contract. Defendant assigns as error the admission in evidence over its objection of testimony of male plaintiff on direct-examination to the effect that when these changes were being discussed C. W. Myers, president of defendant, said he would put in first class material all through plaintiffs' house. The male plaintiff then testified: 'He said the materials in the Endsley Avenue house were scraps and they was rent houses and he built them for rent houses, and they were scraps from other houses that he had built. We asked him about that at the time we signed the contract.' Then he was asked: 'And what did he say about that? ' He answered: 'He said, 'it is wrote in the contract to be first class material.' ' Defendant assigns as error the denial of his motion to strike the answer. Plaintiffs contend the challenged testimony was competent to explain a latent ambiguity in the contract as to the kind of material to be used in the construction of their dwelling, that the words 'first class turn-key job' were meant to identify the kind of material to be used, and that Myers' statement was an admission by defendant that the words 'first class turn-key job' meant in the construction business good material and good workmanship. C. W. Myers testified on cross-examination: 'My man drew that contract. I did not put in there about first class turn-key construction to deceive these people; it was put in there to be as good as that or better, and it is better; it must be a pretty good house if it is worth $12,000.00 today. I think it is a first class turn-key job for the price of the house. I contracted to build them a house for a first class turn-key job, with the same kind of material that is in the other house. That is the contract.'

Plaintiffs state in their brief: 'Plaintiffs in neither trial denied that the contract required the 'same kind of material' as in the Endsley Avenue house. Plaintiffs do not at this time ask for a construction of the contract which disregards this term of the contract. Plaintiffs do ask, however, that the contract be construed as a whole, including the term 'first class turn-key job,' in the light of the evidence introduced to establish the intended meaning of that term. Plaintiffs contend the intent of the parties was strictly a matter for the jury.'

The written contract states the defendant agrees to complete 'as a first class turn-key job the entire construction of said dwelling.' (Emphasis ours). Nothing is said in these quoted words about material to be used in the construction of the dwelling. Webster, New International Dictionary, 2nd Edition, defines turn-key job thus: 'Any job or contract in which the contractor agrees to complete the work to a certain specified point, and to assume all risk.' The contract then specifically states: 'It Being Understood And Agreed that said dwelling shall be exactly like house built on Endsley Ave. house #13 (with minor exceptions). To use the same kind of material used in Endsley Ave. house #13.'

It seems plain that the words 'as a first class turn-key job the entire construction of said dwelling,' as used in the contract, considered not as a detached portion but in connection with the other words in the contract, must have been used in their ordinary sense, and meant that defendant would build a complete house, that is one ready for occupancy by plaintiffs as a dwelling, and did not mean the kind of material to be used in its construction, because...