Corinthian Lodge v. . Smith , 147 N.C. 244 ( 1908 )

(The difference between this and a "builder's contract," in its accepted meaning, and the liability under the latter, discussed and distinguished by HOKE, J.) There was evidence tending to show that plaintiff lodge, in 1904, was erecting a Masonic temple for the use of the order in the town of Rocky Mount, N.C. and intended to prepare the first floor, 25 x 130 feet, to rent as a storeroom for mercantile purposes, and, pending (245) the construction of the building, plaintiff entered into a contract with defendants to rent them the store for one year, with privilege of renewal, at the contract price of $700 per year, to commence 1 January 1905; that defendants failed and refused to take the store as agreed upon, to plaintiff's damage $375. Defendants admitted that they had entered into an executory contract to lease the store; that they had refused to take the same, and justified their action on the alleged ground that the contract stipulated that plaintiff was to fit up and furnish the storeroom and have same provided with steam heat; with awnings at either end of store, same having two fronts; with oak counters, grained; have sidewalks in front of each end of store paved; and all to be completed and ready for occupation by 1 January, 1905; and that plaintiff had totally failed to comply with these requirements of the contract. On the trial there was conflict of testimony as to other terms of the contract and compliance with the same, but the evidence of both parties was to the effect that the storeroom was to be steam-heated and ready for occupation by 1 January, 1905; that the steam heat was not ready at that time, but the heat was turned on some time between the 5th and the 10th of January; that two stoves had been put in the building to supply heat for the workmen and then for use by defendants. H. E. Brewer, a witness for plaintiff, and one of the trustees, said that he told defendant Smith as early as 1 December that they could not get the heat in by 1 January, and he made no reply. At the close of the testimony his Honor stated to the counsel for plaintiff that he would instruct the jury "that if they should find from the evidence that the contract between the plaintiff and the defendants was that plaintiff was to have the store steam-heated, completed and ready for occupancy by 1 January, 1905, and did not have said store steam-heated on that day according to contract, but bad it heated by two stoves, to answer the first issue ``No,' and this would be so notwithstanding the plaintiff had stated to the defendant (246) Smith, some-time in December, 1904, that the plaintiff could not have the store steam-heated by 1 January, to which statement the said Smith made no reply; and if you so find the facts, then this would be the law, notwithstanding all else that appears in the evidence." In deference to this intimation, the plaintiff submitted to a nonsuit and appealed. After stating the case: In Ducker v. Cochrane, 92 N.C. 597, the Court held "that one party to a contract cannot maintain an action for its breach without averring and proving a performance of his own antecedent obligations arising on the contract or some legal excuse for a nonperformance thereof, or, if the stipulations are concurrent, his readiness and ability to perform them." This principle has been recognized and applied by us in many well considered cases. Tussey v. Owen,139 N.C. 457; Jones v. Mial, 79 N.C. 164, modified, but not on this point, in 82 N.C. 252; Niblett v. Herring, 49 N.C. 262; Grandy v.McCleese, 47 N.C. 142. And it is also well established that when the stipulations imposed by such a contract on the complaining party are in the nature of conditions precedent a strict compliance may be insisted on.Mizell v. Burnett, 49 N.C. 249; Norrington v. Wright, 115 U.S. 188;Oakley v. Morton, 11 N.Y. 25; Pickering v. Greenwood, 114 Mass. 479.

A correct application of the principles upheld in these cases fully sustains the charge as proposed by his Honor, and in our opinion there is nothing presented here which would justify the Court in holding that substantial compliance had been shown or that time was not of the essence. The testimony is to the effect that defendants were merchants having an established business in the town of Rocky Mount, and (247) they agreed to take a lease of plaintiff's storeroom if it was furnished with steam heat and ready for occupation in this and other specified particulars by 1 January, 1905. They were not called on to accept two stoves as a substitute for the steam heat for which they had contracted, and they were not required to enter in the occupation of an unfinished storeroom without knowing how long such a condition would continue — a condition that might subject themselves and customers to much annoyance and possibly result in a substantial falling off of their trade. They had made a careful contract, provident against any serious interruption of their business by reason of the contemplated move, and they had a right to insist that its terms be complied with in the specified particulars and within the specified time. Nor are defendants estopped from maintaining this defense by the fact that one of plaintiff's trustees told one of defendants, on or about 1 December, 1904, that plaintiff would not be able to complete the store within the time allowed. There is no testimony offered that at that time or afterwards defendants gave any directions about the work or assumed any authority over it or gave indication in any way that they waived their right to demand a strict performance of the contract; and there is nothing in this occurrence, therefore, which prevents them from setting up the defense on which they insist.

The doctrine which we hold to be controlling on the facts of this appeal is modified to some extent by a line of cases which establishes the principle that when "one party has performed the contract in a substantial part and the other party has accepted and had the benefit of the part performance, the latter may under certain circumstances be precluded from relying on the performance of the residue as a condition precedent to his liability." 1 Beach Contracts, sec. 107; 9 Cyc., 645. This principle more usually obtains in the case of building contracts, when the owner or proprietor of a house that has been built or substantially completed by another has entered into the possession and use of his (248) building. In such case, owing to the great hardship and injustice that would frequently arise by a strict application of the general rule, the courts are disposed to lay hold of slight circumstance as justifying the modification suggested and apply the principle stated in Beach Modern Law of Contracts, as follows (section 108): "Where a building is erected upon and becomes a part of the realty of the owner, and, although defective in some respects, is of real and substantial value to the owner, the contractor can recover the value of his work, less the damages to the other party, for a failure to comply with the terms of the agreement." But the facts of this case do not call for or permit the application of the principle referred to. ``The defendants have never entered in possession of this storeroom, nor have they received or enjoyed the benefit of any labor or expenditure on the part of plaintiff. On the contrary, they insist that, by reason of plaintiff's failure to comply with antecedent conditions, they are not called on to take the plaintiff's store, and they are not responsible in damages for refusing to do so. While the contract is about a building, it is in no sense a building contract within the meaning of the principle which plaintiff seeks to invoke, but as between these parties it is an ordinary business contract, governed by the general principles stated at the outset and decisive of the question presented in defendants' favor.

There is no error, and the judgment below is

Affirmed.

Cited: Supply Co. v. Roofing Co., 160 N.C. 445; Raby v. Cozad,164 N.C. 290; McCracken v. R. R., 168 N.C. 67; McCurry v. Purgason,170 N.C. 468.

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