Willis v. Russell , 68 N.C. App. 424 ( 1984 )

315 S.E.2d 91 (1984)

James B. WILLIS, Jr.
v.
Thomas H. RUSSELL and Shelby M. Freeman.

No. 833SC239.

Court of Appeals of North Carolina.

May 15, 1984.

Mason & Phillips by L. Patten Mason, Morehead City, for plaintiff-appellant and cross-appellee.

Bennett, McConkey & Thompson by Thomas S. Bennett, Morehead City, for defendant-appellee and cross-appellant Thomas H. Russell.

Wheatly, Wheatly & Nobles by C.R. Wheatly, Jr., Beaufort, for defendant-appellee and cross-appellant Shelby M. Freeman.

PHILLIPS, Judge.

Both parties assign error to the trial court ruling on defendants' motions for directed verdict. The appropriate standard of review is set forth in Koonce v. May, 59 N.C.App. 633, 634, 298 S.E.2d 69, 71 (1982):

A motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. On such a motion, plaintiff's evidence must be taken as true and considered in the light most favorable to the plaintiff, giving plaintiff the benefit of every reasonable inference to be drawn therefrom. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. [Citations omitted].

Although the directed verdict was in plaintiff's favor, it was granted upon defendants' motion, over plaintiff's objection, and deprived plaintiff of the chance of recovering a great deal more than the judgment provided for. Under the circumstances, the evidence must be viewed in the light most favorable to plaintiff. When so viewed, it is clear that a prima facie case of breach of contract was made out, which the jury, rather than the court, should have decided. Furthermore, even if plaintiff's evidence had failed to make out a case for breach of contract by defendants and it had been proper to dispose of the case by the quantum meruit issue, it was error for the court to undertake to decide it instead of submitting it to the jury.

According to the evidence previously summarized: Plaintiff offered to perform certain architectural design services for defendants in exchange for certain compensation; their discussions dealt with both the entire condominium project and the schematic design, and the fees to be paid therefor were clearly stated. Defendants told plaintiff to begin the work, approved his work as it proceeded, and approved the fee and profit schedules received. A jury could properly find therefrom that defendants expressly contracted with plaintiff for either the schematic design work or for the entire project on the fee basis that plaintiff testified was discussed. Defendants' refusal to execute a written contract so providing does not necessarily establish that plaintiff's services were not accepted, as defendants contend; the intent of the parties controls such matters, and acceptance may be manifested orally or by conduct, as well as by a signature. Executive Leasing Associates, Inc. v. Rowland, 30 N.C.App. 590, 592, 227 S.E.2d 642, 644 (1976). In our view this evidence was sufficient to support the claim that the defendants engaged plaintiff upon express terms to either design and supervise the entire condominium project or just do the schematic design phase.

Upon retrial, therefore, it will be for the jury to determine whether the parties contracted at all, and, if so, whether for the entire project or just the schematic design. If the jury finds that there was a contract for the entire project based on the fee schedule referred to and defendants breached it, the measure of damages would include plaintiff's prospective profits, as well as the fees for work performed. The general rule in this state is that prospective profits prevented or interrupted by breach of contract are recoverable when it appears:

(1) that it is reasonably certain that such profits would have been realized except for the breach of the contract, (2) that such profits can be ascertained and measured with reasonable certainty, and (3) that such profits may be reasonably supposed to have been within the contemplation of the parties, when the contract was made, as the probable result of a breach.

Perkins v. Langdon, 237 N.C. 159, 171, 74 S.E.2d 634, 644 (1953). But, of course, ifthe jury finds that the parties had no express contract, it would then be appropriate for them to consider issues of implied contract and quantum meruit. In which event, of course, the measure of damages will be the reasonable value of the services rendered, less any benefits received, Doub v. Hauser, 256 N.C. 331, 123 S.E.2d 821 (1962), rather than the formula the trial court used. But, since damages, at least beyond a nominal amount, are never presumed, for plaintiff to recover any substantial sum under a quantum meruit theory, evidence will be required as to the reasonable value or market value of his services and those of any of his assistants or employees that contributed to the work that was done for the defendants. Harrell v. W.B. Lloyd Construction Co., 41 N.C.App. 593, 255 S.E.2d 280 (1979). The value of plaintiff's services will not have to be determined, however, if the jury first decides that the parties had an express contract and defendants breached it; for, with minor exceptions irrelevant to this appeal, our law permits people to contract as they see fit and enforces agreements so made according to their terms.

Since the judgment in plaintiff's favor was entered pursuant to defendants' insistence and instigation, they cannot be heard in opposition thereto, and their appeal from the judge's earlier refusals to either direct a verdict in their favor or to direct a verdict for plaintiff, but in a lesser amount than finally ordered, has that effect. It is inherent in our law and practice that litigants may not blow hot and cold at the same time, and defendants' appeal is dismissed.

Nevertheless, we discuss briefly, since the question may arise again upon retrial, defendants' contention that the written contract, which the parties never executed, was erroneously received into evidence during the trial. That the paper was not signed is immaterial, since the contract sued on was oral, not written, and a contract for architectural services does not have to be in writing. Since the paper contained matters that, according to plaintiff, had been discussed by the parties and orally agreed to, it was admissible, but only for the purposes of corroboration. In receiving the exhibit into evidence over defendants' objection, however, the court commented, "And it should be received for whatever weight the jury wants to attach to it." Though the case was later taken from the jury and we do not know how they would have been instructed in regard to it, the remark indicates that the judge received the exhibit as substantive evidence, which it was not. Thus, upon retrial, if the paper is again offered into evidence, its admission should be limited accordingly.

As to plaintiff's appeal, reversed and remanded for a new trial.

As to defendants' cross-appeal, dismissed.

BRASWELL, J., concurs.

WELLS, J., concurs in result.

WELLS, Judge, concurring in result.

I agree that defendants' appeal should be dismissed. I also agree that plaintiff should have a new trial. On retrial, the jury should be instructed that defendant, by its motion for directed verdict for plaintiff, has judicially admitted owing plaintiff at least $7,032.50.