Teer v. George A. Fuller Co.

• Decision Date: 14 January 1929
• Docket Number: No. 2763.,2763.
• Parties: TEER v. GEORGE A. FULLER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

30 F.2d 30 (1929)

TEER v. GEORGE A. FULLER CO.

No. 2763.

Circuit Court of Appeals, Fourth Circuit.

January 14, 1929.

L. P. McLendon, of Durham, N. C., (Jones Fuller, R. P. Reade, H. G. Hedrick, and F. L. Fuller, Jr., all of Durham, N. C., on the brief), for appellant.

A. L. Brooks and Julius C. Smith, both of Greensboro, N. C. (E. S. Parker, Jr., and C. R. Wharton, both of Greensboro, N. C., on the brief), for appellee.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

WADDILL, Circuit Judge.

This is an appeal from the action of the United States District Court for the Eastern District of North Carolina in entering judgment for only $3,638.25 in appellant's favor, and in dismissing as of nonsuit appellant's claim for $25,448.45.

On December 10, 1927, appellant, Nello L. Teer, instituted an action in the superior court of Durham county, N. C., against the George A. Fuller Company, appellee here, to recover $31,973.58, which cause was removed to the Federal District Court at Raleigh on December 31, 1927. The complaint alleged, among other things, that the plaintiff, Teer, was engaged in the business of a grading contractor, and the defendant company, a corporation organized and existing under the laws of the state of New Jersey, but domesticated under the laws of the state of North Carolina, was engaged in the business of a general construction contractor; that on or about the 5th day of August, 1925, the defendant, then being general contractor for the construction of a number of buildings for Duke University, at Durham, N. C., entered into a contract with plaintiff, whereby plaintiff was employed to do all the excavation work in connection with the construction of said buildings; and that in accordance with the terms of his employment, plaintiff entered upon and completed the work of excavation contracted for.

The complaint further alleged that while plaintiff was engaged in performing his contract with defendant, he was ordered and directed by defendant to do other and additional work, not included in plaintiff's original contract of employment, and that the plaintiff and defendant entered into a second contract, by which the plaintiff engaged to do said additional work, and defendant agreed to pay for such further work at the same unit price designated in the first contract of employment, and when no price was designated, defendant agreed to pay a reasonable compensation, viz., the cost to the plaintiff of doing such work, plus the usual and reasonable profit thereon; that, in accordance with the terms and provisions of said second contract, the plaintiff in good faith performed the additional work so agreed upon as designated by defendant's engineers and other employés of defendant corporation, and when said work was completed defendant received and accepted the same; that during the progress of said work the plaintiff rendered detailed statements of his payrolls and costs to defendant; that by reason of the work done, which continued over a period from about August 1, 1925, to October 1, 1927, the defendant was indebted to plaintiff for the sum of $31,973.58, which was the reasonable value of the work performed by plaintiff; and that payment therefor, though demanded, had been refused. Interest on the sum sued for, from October 26, 1927, was claimed.

The defendant, George A. Fuller Company, answered, denying that there was any contract except the original written contract of August 5, 1925, and denied generally the plaintiff's claim, but set up and pleaded as a bar to plaintiff's right of recovery the provisions of the written contract, with reference to the extra work sued for being authorized in writing. Defendant, in its answer, further stated that it had tendered plaintiff $3,467.25 for the work performed under the contract of August 5, 1925, which payment plaintiff had refused to accept; and the answer denied that the extra work for which payment was claimed by plaintiff had ever been authorized by defendant.

The plaintiff, in replying, contended that the provisions of the contract were waived, and that the so-called extra work or overhaul was authorized verbally by the local superintendent in charge of defendant's building operations at Duke University. The defendant corporation filed a rejoinder, denying the matters alleged in the plaintiff's reply.

Upon the foregoing pleadings, the case was tried, with the result that judgment was entered in favor of plaintiff for $3,638.25, admitted by defendant to be due, and the plaintiff's cause of action as to alleged extra work was dismissed as of nonsuit. The plaintiff appealed, assigning error to the trial court's action dismissing his claim for alleged extra work and directing a nonsuit thereon, and also assigning error to its rulings in the admission and rejection of evidence, and in not submitting the issues between the parties to the jury for determination.

Assignments of error Nos. 1, 2, 3, and 4 are to the court's action in permitting the introduction before the jury of extracts from certain specifications which were part of the contract between Duke University and the defendant. The appellant's exception to the court's action in this respect is without merit. While doubtless the appellant was not bound by the specifications in question in the consideration of the claim for extra work, still to have refused to permit the introduction of the same might have operated prejudicially to the defendant in asserting its defense, and certainly it was not improper to permit them to be introduced with appropriate instructions by the court as to their probative value.

Assignments Nos. 5 and 6 relate to the action of the trial court in not allowing the plaintiff to answer two certain questions propounded to him as follows:

"Q. You were asked yesterday the reason why the overhaul amounting to $24,000.00 as compared with the amount of the contract of $29,500.00, explain why that was?"

"Q. Mr. Teer, what was the actual cost to you for making this overhaul?"

— which the court likewise refused to permit to be answered. These two assignments of error, Nos. 5 and 6, appear to us to be well founded, as the plaintiff should have been afforded the fullest opportunity to make the very explanations called for. The plaintiff's answer, preserved in the record in connection with the ruling on the exception, as under assignment 6, was as follows: "A. The actual cost to me was $23,134.87, which includes 2,285 hours for labor in spreading the dirt on the campus, amounting to $571.25, and 28 hours use of a ten ton tractor in leveling the dumping ground between the...