Helms v. Dawkins , 32 N.C. App. 453 ( 1977 )

232 S.E.2d 710 (1977) 32 N.C. App. 453

Kelly H. HELMS
v.
Koy E. DAWKINS, and wife, Betty T. Dawkins.

No. 7620SC756.

Court of Appeals of North Carolina.

March 2, 1977.

Thomas D. Windsor, Charlotte, for plaintiff-appellant.

James E. Griffin, Monroe, for defendants-appellees.

HEDRICK, Judge.

Plaintiff assigns as error summary judgment entered for defendants.

It is well settled in North Carolina that a general contractor within the meaning of G.S. 87-1 who has no license or who constructs a project the value of which exceeds the amount of his license may not recover for the owner's breach of the contract, or for the value of the work and services furnished or materials supplied under the contract on the theory of unjust enrichment. Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968); Furniture Mart v. Burns, 31 N.C.App. 626, 230 S.E.2d 609 (1976); Construction Co. v. Anderson, 5 N.C.App. 12, 168 S.E.2d 18 (1969). However, the general contractor may assert any claim he has against the owner for breach of the contract defensively as a set-off to any claim asserted against him by the owner for any breach of the contract by the owner. Builders Supply v. Midyette, supra.

G.S. 87-1 in pertinent part provides,

"For the purpose of this Article, a ``general contractor' is defined as one who for a fixed price, commission, fee or wage, undertakes to bid upon or to construct any building . . . where the cost of the undertaking is thirty thousand dollars ($30,000) or more . . .."

Citing Fulton v. Rice, 12 N.C.App. 669, 184 S.E.2d 421 (1971), plaintiff insists he was not a general contractor within the meaning of G.S. 87-1 because the cost of his "undertaking" was not equal to or in excess of $30,000 but was the amount of his commission, $8,762.26. In our opinion, the cited case does not support this contention. The record here clearly establishes that the cost of the undertaking to construct defendants' home was in excess of $30,000. It does not necessarily follow, however, that the plaintiff in the present case was a general contractor within the meaning of G.S. 87-1. Not every person who undertakes to do construction work on a building is a general contractor, even though the cost of his undertaking exceeds $30,000. Furniture Mart v. Burns, supra.

A general contractor is one who contracts "to construct any building, highway, public utilities, grading or any improvement or structure" for a "fixed price, commission, fee or wage." G.S. 87-1. While several factors must be taken into consideration in determining whether a party is a general contractor within the meaning of the contractors' licensing statutes, the principal characteristic distinguishing a general contractor from a subcontractor or other party contracting with the owner with respect to a portion of the project, Vogel v. Supply Co., 277 N.C. 119, 177 S.E.2d 273 (1970), or a mere employee, Furniture Mart v. Burns, supra, is the degree of control to be exercised by the contractor over the construction of the entire project. Ordinarily the degree of control a contractor has over the construction of a particular project is to be determined from the terms of the contract. Where the terms of the contract are ambiguous as to the degree of control to be exercised by the contractor, the intention of the parties with respect thereto is to be determined as in any other case.

In the present case, the written contract is ambiguous as to the degree of control plaintiff was to exercise in supervising the construction of defendants' home in accordance with the plans prepared by Mrs. Lee. Furthermore, the evidence offered in support of and in opposition to defendants' motion for summary judgment fails to clarify this ambiguity and establish as a fact that the plaintiff was a general contractor within the meaning of G.S. 87-1.

Thus, under the circumstances of this case, summary judgment for defendants was inappropriate, and the judgment appealed from is reversed and the cause remanded to the Superior Court for further proceedings.

Reversed and remanded.

BRITT and CLARK, JJ., concur.