Tillman v. Talbert , 244 N.C. 270 ( 1956 )

93 S.E.2d 101 (1956) 244 N.C. 270

Ted TILLMAN
v.
Ernest W. TALBERT and Marlon T. Talbert.

No. 742.

Supreme Court of North Carolina.

June 6, 1956.

James R. Farlow, Chapel Hill, for plaintiff, appellee.

William S. Stewart, Chapel Hill, for defendants, appellants.

PARKER, Justice.

The defendants assign as error the denial by the court of their motion for judgment of nonsuit. The defendants contend that the plaintiff, who is not a licensed architect, in furnishing plans for the construction of a house for defendant, was acting as an architect, and that he cannot recover on a quantum meruit, because the work he did was under a contract illegal because it violated Ch. 83 of the General Statutes, and that this is true whether the building was to cost less than $20,000 or more.

G.S. § 83-12 reads in part: "In order to safeguard life, health and property, it shall be unlawful for any person to practice architecture in this State as defined in this chapter, except as hereinafter set forth, * * *." Further on G.S. § 83-12 reads in part: "Nothing in this chapter shall prevent any person from selling or furnishing plans for the construction of residence or farm or commercial buildings of a value not exceeding twenty thousand dollars ($20,000.00); provided that such persons preparing plans and specifications for buildings of any kind shall identify such plans and specifications by placing thereon the name and address of the author." The fact that plaintiff made preliminary studies, consulted with the defendants and made changes on the plans at their request for the construction of a house to cost about $18,000 would not prevent him from coming within the exception to the statute quoted above: these things would seem to be an essential part of furnishing plans.

Plaintiff could make an enforceable contract, pursuant to G.S. § 83-12, to furnish plans for the construction of a residence of a value not exceeding $20,000. His recovery on a quantum meruit was for the work he did on this enforceable contract up to the time that changes in the plans, made at the repeated requests of the defendants, resulted in the designing of a residence of a value exceeding $20,000, and not for any work he did at the requests of defendants on plans for the construction of a building of a value of more than $20,000.

A subsequent illegal agreement by the parties cannot affect a previous fair and lawful contract between them in relation to the same subject. The change is regarded as a mere nullity, and as such cannot scathe the original contract. Wilcoxon v. Logan, 91 N.C. 449; Britt v. Aylett, 11 Ark. 475, 52 Am.Dec. 282; McCurdy v. Dillon, 135 Mich. 678, 98 N.W. 746; Cain v. Bonner, 108 Tex. 399, 194 S.W. 1098, 3 A.L.R. 874; 15 A. & E.Ency.Law 932; Tearney v. Marmiom, 103 W.Va. 394, 137 S.E. 543; 17 C.J.S., Contracts, § 287; Page on Contracts, sec. 2469. See also: In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 14 A.L.R. 2d 842.

In Collier v. Nevill, 14 N.C. 30, this Court held that if a security is valid in its inception, a subsequent usurious transaction does not avoid it. To the same effect see: Bost v. Smith, 26 N.C. 68; Cobb v. Morgan, 83 N.C. 211; Wharton v. Eborn, 88 N.C. 344; Rountree v. Brinson, 98 N.C. 107, 3 S.E. 747; Webb v. Bishop, 101 N.C. 99, 7 S.E. 698.

In Cain v. Bonner, supra [108 Tex. 399, 194 S.W. 1098], the Texas Supreme Court said: "A contract, originally valid, is not rendered invalid by a subsequent agreement."

The plaintiff made out his case for a recovery on quantum meruit without reliance on any work done by him on plans for the construction of a building of the value of more than $20,000, which subsequent work will not bar his recovery on a quantum meruit for work done under the original valid contract. 17 C.J.S., Contracts, § 276.

The plaintiff rendered services to the defendants under a valid contract, and he may recover the value of his services on a quantum meruit as a benefit to the defendants receiving them. The court properly overruled the motion for judgment of nonsuit.

The assignments of error as to parts of the charge as given are overruled, for the reason that prejudicial error is not shown. Further, the assignments of error as to the failure of the court in its charge to comply with G.S. § 1-180 are broadside.

The defendants alleged as a counterclaim that they told plaintiff in March 1953 that they proposed to purchase another lot close to the lot they owned on which they proposed to erect at the same time another house, and that by reason of plaintiff's failure to prepare plans for a residence for them to cost about $18,000 the defendants were unable to proceed with the erection of the two buildings at the same time, instead they built the residence in which they now live, and that now they are about to begin the erection of a second house, but the cost of erecting houses at different times is greater than the cost of erecting them at the same time would have been, and the defendants have been damaged in the amount of $1,800. The defendants offered evidence to the effect that when you construct two houses at the same time a savings can be effected, if the houses are in close proximity and are built along the same lines and of the same kind of material; and that they purchased a second lot in May 1953. The defendants offered no evidence as to the kind of second house they intended to build. At the close of defendants' case, the court granted the motion of plaintiff to nonsuit the defendants' counterclaim for damages in the amount of $1,800. The ruling was correct, even if the allegations of the counteclaim are sufficient, which we do not concede.

The other assignments of error are formal and are overruled.

In an action to recover on a special contract and also upon a quantum meruit, plaintiff, under our practice, can abandon his special contract, and recover on quantum meruit for the reasonable value of his services. Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371. In Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331, the plaintiff declared on a special contract, void under the Statute of Frauds, and was allowed to recover in assumpsit on quantum meruit.

In the trial below we find

No error.