Cantrell v. Woodhill Enterprises, Inc. , 273 N.C. 490 ( 1968 )

160 S.E.2d 476 (1968) 273 N.C. 490

Willis CANTRELL and wife, Carolyn Cantrell
v.
WOODHILL ENTERPRISES, INC.

No. 201.

Supreme Court of North Carolina.

April 17, 1968.

Hollowell, Stott & Hollowell, Gastonia, for plaintiff appellants.

Mullen, Holland & Harrell, Gastonia, for defendant appellee.

SHARP, Justice.

This appeal involves only the question whether plaintiffs' evidence, together with that of the defendant which is favorable to them, will withstand the motion for nonsuit. 4 Strong, N.C. Index, Trial § 21 (1961). Plaintiff's complaint is (1) that defendant failed to construct the house according to specifications; (2) that the landscaping did not meet the specifications; and (3) that the residence was erected in an unskillful manner.

The express contract upon which plaintiffs sue consists of the plans and specifications, which plaintiff and defendant signed and the Veterans' Administration approved. The sketch which plaintiff gave Mr. Doster, and which he used as the basis for the final blueprints, was merely one facet of the preliminary negotiations which were merged in the subsequent written agreement between the parties. This agreement is conclusive as to the terms of the bargain. Williams v. McLean, 220 N.C. 504, 17 S.E.2d 644; 1 Strong, N.C. Index, Contracts § 5 (1957). The evidence of plaintiffs and defendant shows that the house was constructed in conformity with the plans and specifications signed by the parties and approved by the Veterans' Administration. Thus, plaintiffs failed to establish their allegation that the residence was not constructed in accordance with the plans and specifications.

With reference to landscaping, the contract provided, inter alia, that topsoil four inches thick should be placed on the front yard and that two shade trees be planted. Plaintiff testified that no topsoil was put on the front yard and that no shade trees were planted. Doster testified that all the required landscaping was done; that he planted no shade trees because there were two already on the lot. Be that as it may, if shade trees and topsoil were not provided as called for in the specifications, these omissions were obvious at the time plaintiffs moved into the house about 11 June 1963, at the time they signed the declaration of acceptance on 18 June 1963, and at the time they closed the loan and paid defendant the purchase price in full.

Plaintiffs' acceptance of the completed house and lot was in writing and unequivocal. It was executed neither under protest nor with reservations. Although plaintiff testified that he made certain complaints to Mr. Stroup at the time of the final inspection, there is no evidence that he protested to defendant. Acceptance manifests one's intent to receive the thing offered or tendered as one's own; it is a tacit agreement that the offerer—here the builder—has complied with his required duty. "Acceptance implies satisfaction and waives many rights." Moss v. Best Knitting Mills, 190 N.C. 644, 647, 130 S.E. 635, 636. See Black's Law Dictionary 27 (4th ed.1951). In Salem Realty Co. v. Batson, 256 N.C. 298, 123 S.E.2d 744, this Court quoted with approval the following statement of the rules with reference to acceptance and waiver in building and construction contracts:

"``Where work is accepted with knowledge that it has not been done according to the contract or under such circumstances that knowledge of its imperfect performance may be imputed the acceptance will generally be deemed a waiver of the defective performance. But this rule does not apply to latent defects. The acceptance of work which has been defectively done, the defects being unknown and not discoverable by inspection, does not amount to a waiver of the imperfect performance.' 12 Am.Jur., Contracts § 355. Annotation: 109 A.L.R. 625, 628. In City of Seaside v. Randles, 92 Or. 650, 180 P. 319, it is stated: ``An acceptance of work done under a construction contract does not constitute a waiver of latent defects of which the owner was ignorant at the time, or which may appear thereafter.'" Id. at 308, 123 S.E.2d at 751. See also 13 Am.Jur.2d, Building and Construction Contracts § 55 (1964).

Plaintiffs' evidence, taken in the light most favorable to them, tends to show that at the time they accepted the property, there existed the following latent defects which were unknown to them and not discoverable by inspection: Defective subflooring in the living room and kitchen, poor workmanship in filling the nail holes in the hardwood floors in the hall and bedrooms caused by "face-nailing" in the rooms, and improper installation of the overhead cabinets in the kitchen.

It is the duty of every contractor or builder to perform his work in a proper and workmanlike manner, and he impliedly represents that he possesses the skill necessary to do the job he has undertaken. "In order to meet this requirement, the law exacts ordinary care and skill only." Moss v. Best Knitting Mills, supra, 190 N.C. at 648, 130 S.E. 637; accord, Byerly v. Kepley, 46 N.C. 35.

The only allegation which plaintiffs make with reference to faulty workmanship in the house is the generalization that defendant "erected said residence in an unskillful manner." In an action for breach of a building or construction contract—just as in any other contract case—the complaint must allege the existence of a contract between plaintiff and defendant, the specific provisions breached, the facts constituting the breach, and the amount of damages resulting to plaintiff from such breach. 1 McIntosh, N.C. Practice & Procedure § 1066 (2d ed. 1956); 13 Am.Jur.2d Building and Construction Contracts § 115 (1964); 9 C.J. Building and Construction Contracts § 241 (1916). The party who sues or defends upon the basis of a breach of contract "``must allege it as well as the facts constituting it.'" Yates v. W. F. Mickey Body Co., 258 N.C. 16, 22, 128 S.E.2d 11, 15. "[W]here the cause of action is a failure to construct in a workmanlike manner and with the material contracted for, plaintiff's pleading should allege wherein the workmanship was faulty or the material furnished by defendant was not such as the contract required." 17A C.J.S. Contracts § 544 (1963). Accord, Boettler v. Tendick, 73 Tex. 488, 11 S.W. 497, 5 L.R.A. 270.

The rule with reference to pleading a breach of contract is no different from that which requires a plaintiff in a personal-injury action to plead the facts constituting the negligence which he claims proximately caused his injuries. "``Negligence is not a fact in itself, but is the legal result of certain facts.'" Stamey v. Rutherfordton Electric Membership Corp., 247 N.C. 640, 645, 101 S.E.2d 814, 818. Likewise, a breach of contract is a legal result of certain facts. A plaintiff's failure to allege these facts renders the complaint subject to demurrer, but when the demurrer is sustained the plaintiff may then move for leave to amend his complaint in order to allege his cause of action properly. Shives v. Sample, 238 N.C. 724, 79 S.E.2d 193.

In this case, defendant made no motion to strike the third portion of plaintiffs' cause of action, i.e., the general allegation that it had constructed the house "in an unskillful manner." Had a motion to strike been made, it would have been allowed—with permission to amend, no doubt.

Plaintiffs' allegation of unskillful work was a defective statement of that part of their cause of action; it was not a statement of a defective cause. When plaintiffs introduced evidence from which the jury could have found that at the time they accepted defendant's work certain latent defects resulting from poor workmanship existed, there was no variance between this general allegation and their proof. G.S. § 1-169. Variance occurs when the proof does not conform to the case pleaded. See Zager v. Setzer, 242 N.C. 493, 88 S.E.2d 94; Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43. See also Note, 41 N.C.L.Rev. 647 (1963). The court therefore could not dismiss the action upon that ground even though defendant (assuming an amendment to its answer as indicated below) was entitled to a nonsuit or a directed verdict upon the other two portions of plaintiffs' cause of action. For that reason, the nonsuit must be reversed.

Since the case goes back for retrial, we also point out a defect in defendant's pleading. Waiver and estoppel are affirmative defenses; yet defendant failed to plead plaintiffs' acceptance of the property in bar of their right to recover for its alleged failure to meet the specifications. See Salem Realty Co. v. Batson, supra.

If there is to be a retrial of this case, no doubt both plaintiffs and defendant will move for permission to revamp their pleadings in order to bring them within the established rules.

Reversed.

HUSKINS, J., took no part in the consideration or decision of this case.