Welborn Plumbing & Heating Co. v. Randolph County Bd. of Ed., 604
| Citation | 150 S.E.2d 65,268 N.C. 85 |
| Decision Date | 21 September 1966 |
| Docket Number | No. 604,604 |
| Parties | WELBORN PLUMBING AND HEATING CO., Inc. v. RANDOLPH COUNTY BOARD OF EDUCATION. |
| Court | United States State Supreme Court of North Carolina |
Miller & Beck, by G. E. Miller and Thomas L. O'Briant, Asheboro, for defendant appellant.
Bencini & Wyatt, by Joe D. Floyd, High Point, for plaintiff appellee.
Before Judge Riddle the parties stipulated: (1) Defendant, as the governmental agency of Randolph County, North Carolina, charged with the responsibility of constructing and maintaining public schools in said county, has authority to enter into contracts for these purposes. On 12 January 1961 the defendant entered into a contract with plaintiff providing, Inter alia, that plaintiff was to install heating facilities in the addition to the Archdale Public School, which was to be constructed according to plans and specifications submitted by defendant through its architects; (2) the work contracted to be performed by plaintiff for defendant in connection with the Archdale Public School is governed by the contract between the parties dated 12 January 1961, the proposal of the same date of plaintiff to defendant for the accomplishment of the work proposed, the contract and the proposal of plaintiff cach referring to and incorporating therein 'Contract Documents' as prepared by the architect, John James Croft, Jr., and referred to as 'General Conditions,' Section 00--G1, consisting of seven pages, and 'Heating Work' referred to as Section 38--011, consisting of two pages; (3) defendant deducted the sum of $1,541.58 from the contract price of $9,580, being the amount approved by the architect for payment to the general contractor for the protection and repair of damage; and (4) the wall in question was a foundation bearing wall with earth filling inside the building and backfilling on the outside of the building.
This evidence seems undisputed: The building plans for the addition to Archdale Public School called for the construction of three new walls and the use of one wall of the existing building. The particular wall involved in the instant case was a new foundation wall some 15 feet in height from its base 'with earth filling inside the building and backfilling on the outside of the building.' Under the contract plaintiff was to install heating lines adjacent to the outside of this foundation wall along its entire length. To install the heating lines plaintiff had to dig a ditch along the entire length of this foundation wall. At the time plaintiff dug the ditch the general contractor had finished the wall, and had mounted on it the concrete frames which would support the roof of the building; the wall was up and the roof was partially on.
Plaintiff's evidence, considered in the light most favorable to it, tends to show that it performed its work according to the terms of its contract with defendant, that defendant is indebted to it in the amount sued for, to wit, $1,541.58, which was deducted from the contract price by order of the architect, John James Croft, Jr.
Defendant's evidence tends to show that for a period of three days prior to plaintiff's digging the ditch on the outside of the foundation wall there had been constant rainfall, and as a result thereof the ground was extremely wet and muddy, and plaintiff was guilty of negligence in the manner in which it dug the ditch too close to the foundation wall, and guilty of negligence also in digging the ditch under the conditions of wetness and mud, and as a proximate result thereof the foundation wall cracked and bowed out some two or three inches; that the architect, John James Croft, Jr., knew certain work had to be done by the general contractor to correct the damaged condition of the new foundation wall, and that he authorized the payment by defendant of $1,541.58 from the contract price of $9,580 to the general contractor for this work, and defendant deducted this amount from the contract price. The first witness for plaintiff was Clyde B. Welborn, its president. Just before defendant's counsel, Mr. Miller, began his cross-examination of this witness, the court asked Mr. Miller this question: 'Do you admit everything was alright (sic) about the work except causing this wall to fall, is that right?' Mr. Miller replied: 'Yes sir.'
Defendant assigns as error the denial by the court of its motion for judgment of involuntary nonsuit made at the close of all the evidence. It contends as follows: (1) It deducted the sum of $1,541.58 from the contract price of $9,580, being the amount approved by the architect for payment to the general contractor for the protection and repair of damage to the foundation bearing wall, and that the decision of the architect under the contract entered into by and between the parties is final and conclusive, and it is not indebted to plaintiff in any amount; and (2) 'the evidence construed in a light most favorable to the plaintiff clearly establishes plaintiff's negligence in performance of its contract, which negligence constituted a breach of contract precluding recovery on the express contract' and 'there is no allegation in the pleadings or evidence in the record which recovery (sic) may be had under any other theory of law.'
The contract entered into by and between the parties here contains the following as to 'Status of the Architect':
'The Architect shall decide the meaning and intent of any portion of the specifications and of any plans or drawings where the same may be found obscure or be in dispute.
'Any differences or conflicts in regard to their work which may arise between the...
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Rpr & Associates v. O'Brien/Atkins Associates, P.A.
...in the capacity of an arbitrator of a contract dispute between the contractor and the owner. Welborn Plumbing and Heating Co. v. Randolph County Bd. of Educ., 268 N.C. 85, 150 S.E.2d 65 (1966); City of Durham v. Reidsville Eng'g Co., 255 N.C. 98, 103, 120 S.E.2d 564, 567 (1961). This immuni......
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Finish Line v. J.F. Pate & Assocs. Contractors, Inc.
...... the parties are bound by his decision, in the absence of fraud or gross mistake.’ Welborn Plumbing and Heating Co. v. Randolph County Board of Education, 268 N.C. 85, 90, 150 S.E.2d 65, 68 (1966) (quoting 13 Am.Jur.2d Building, Etc. Contracts, § 34 (1964)). There is no evidence here of ......
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MCI Construction v. Hazen and Sawyer, 1:99CV00002 (M.D.N.C. 8/29/2003)
...54 N.C. App. 626, 284 S.E.2d 119 (1981), rev, denied, 305 N.C. 298, 290 S.E.2d 701 (1982), and Welborn Plumbing & Heating Co. v. Randolph County Bd. of Educ., 268 N.C. 85, 150 S.E.2d 65 (1966). Those cases provide that the parties are bound by the referee's decision except "`in case of frau......
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Mci Constructors, Inc. v. Hazen and Sawyer, P.C.
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