Burgin v. . Smith , 151 N.C. 561 ( 1909 )

The commissioners of McDowell, desiring to improve and enlarge the county courthouse, advertised for plans. The defendant, Smith, went to Marion, discussed the matter with the commissioners, and was directed by them to prepare plans and specifications for additions and improvements, the agreement being that if his plans were accepted, and he became a bidder for the work and secured it, he would charge nothing for preparing the plans and specifications; but if they were accepted and another secured the work, he was to be compensated in an agreed way for them. Smith prepared the plans and specifications and sent them to the commissioners several weeks before the contract for the work was let. The commissioners accepted Smith's plans; the commissioners advertised for scaled bids, to be filed on or before 20 January, 1902. Smith, with two others, became bidders. Smith's bid was accepted, and contract with him was made on 20 January. Smith lived in Washington City, and it was not contemplated that he should give the performance of the contract his personal attention, but, of course, should have a competent person or superintendent. The plaintiffs alleged that Smith was a man of skill and ability in his business, both as a draftsman and a builder.

It was stipulated by the contract, among other things, as follows: "Said second party shall appoint a superintendent or committee, qualified to judge as to the quality and character of the material and work required by this agreement, whose duty it shall be to inspect and report upon the work and material during the construction of the said building; and should any material be furnished therefor or work done (572) thereon which in his or their opinion is not in accordance with the requirements of the plans and specifications therefor, it shall be his or their duty to notify said first party (the defendant in this action) thereof, in person or by written notice, forwarded by registered mail to its proper address, unless he or they and said first party or its agent or subcontractor can agree upon the subject in controversy; and the part of the work affected by such notice shall cease and not be resumed until an agreement is reached upon the subject in controversy or settled by competent authority." The commissioners, in compliance with this provision, appointed as their superintendent one J. G. Neal, a man, according to all the evidence, of high character, successful as a business man, and who had been sheriff of the county for many years. He was daily at the work and sometimes oftener. He had absolutely unrestricted opportunity to inspect all material and all work. Not a single witness testifies that any of the work or material were attempted to be concealed from his inspection, or that anything was done to divert his inspection. The defendant was present only once while the work was being done. A controversy arose about increasing the height of the walls eighteen inches; Smith was notified, as required by the contract, came to Marion, and he and the commissioners discussed the matter, and it was agreed by them that the building should be completed without raising the walls. The work then progressed to completion. On 2 June the work was completed, inspected and accepted, the commissioners accepting it, in writing, "as executed to the entire satisfaction of the commissioners, as meeting all their requirements, and that the workmanship and finish are first class, being in every respect up to the plans and specifications." Smith was not even present. No witness testified that anything was done or said by Smith's superintendent to prevent the fullest and most minute inspection by the commissioners. The commissioners then settled with Smith in full, giving the three notes considered in plaintiff's appeal. Defects began to appear in the concrete work soon after the work was accepted, the witnesses differing somewhat in their recollection of the time, and the roof began to leak in a few places. No notice or complaint was made to Smith. After this action was begun by Dr. Burgin, Smith heard of it from his attorney, and at once wrote, complaining of this conduct, requesting information about the defects (in the meantime a new board of commissioners had been elected and come into office) and offering to repair any defects that were reasonably chargeable to bad work, but called attention to the provision of the contract above noted. He sent a man to Marion, not receiving any reply to his letter, and (573) he offered to repair the work, but the commissioners refused to let Smith to do it. The commissioners did nothing to remedy the defects; they did not paint the metal roof, though their own witnesses stated it ought to be painted at least once in three years. That the roof leaks and that some of the cement work is very defective was proved beyond doubt. The defendant, Smith, testified himself that he went to Marion during the trial of this action — seven years after the work was done — and that some of the concrete work was bad. The witnesses for the plaintiff and the defendant seemed to agree that it was rarely practicable to make every job of concrete work good; that the most expert and capable man occasionally failed. We have carefully read and examined the entire evidence taken by a stenographer, and we do not find any evidence legally sufficient to justify the finding of the jury to the second and third issues, and his Honor ought to have instructed the jury to answer those issues "No." The mere development of defects is not sufficient.

In 3 Page on Contracts, sec. 1507, this learned writer says: "If the person for whom work is done inspects it as it progresses, and accepts it, after such inspection, as full performance of the contract, he cannot recover damages for alleged breach which such inspection could have disclosed." There is no doubt that a proper inspection could have disclosed that the walls had not been raised eighteen inches, and that anchors had not been put in the walls, and that the roof leaked, and that the seams of the shingles were not straight. The plaintiff had witnesses who discovered these defects by inspections made by them. It is manifest that the stucco of the columns on the front porch could have been impracticable to have discovered whether the cement concrete would be lime or cement mortar. The character of the plastering in the old part of the building could have been discovered, because the men, who did the work lived in Marion and were at the courthouse every work day for several months, and testified at the trial. It would have been impracticable to have discovered whether the cement concrete would be a good job or a bad job, but the commissioners were not required to accept this until they had become satisfied about it. In Pauly v. Hemphill County, 62 Fed., 698, a contract containing a stipulation in very nearly the exact words of the stipulation in the present case was considered by the court in the following language: "The proviso in the contract which placed it within the power of the defendant county to select its own commissioner to act as inspector during the building, if honestly carried out in accordance with its terms, would necessarily (574) have been of the greatest assistance and protection to both of the contracting parties, and would appear to be a wise and prudent precaution in the completion of such work, the actual supervision of which must necessarily be delegated to the representatives of each party. By it every opportunity in reason was given for the defendant (the plaintiff here) to secure good material and work. The plaintiff (defendant here) would at the same time be protected from the faults and negligence of its own servants, by being immediately informed of and enabled to correct them; also from any complaints that might be made subsequently, too late to determine their truth or falsity. The action of such an arbiter or supervisor, in the absence of any complaint made at the time and in the manner provided by the contract, is prima facie evidence of compliance with the contract, and should be conclusive, except upon the clear and distinct proof of fraud." R. R. v. March, 114 U.S. 1035; Kihlberg v. UnitedStates, 97 U.S. 398; Sweeney v. United States, 109 U.S. 618. In R. R.v. Gordon, 151 U.S. 285, this language is used: "It is difficult to see what effect should be given the acceptance of the work by the superintendent, if not to foreclose the parties from thereafter claiming that the contract had not been performed according to its terms." Church v.Brose, 104 Ill. 206; R. R. v. Price, 138 U.S. 185; Koof v. Lull,70 Ill. 420. The latent defects, in order to preclude the owner from being concluded by an acceptance based upon such supervision as is stipulated in this contract, must be of such character as indicates mala fides on the part of the contractor. The evidence of the plaintiff not only failed to show mala fides, but showed that the defects appearing in the work of the defendant were consistent with honest dealing and occurred at times in work done by the most capable and honest contractors. We therefore are of the opinion that his Honor should have sustained defendant's motion of nonsuit on the cause of action stated in the complaint for damages for breach of contract, and in refusing to do so there is error, and the judgment against defendant on this cause of action is

Reversed.

Cited: County v. Construction Co., 152 N.C. 30; Jones v. New Bern,ibid., 65; Ellison v. Williamston, ibid., 150; Highway Commission v. Webb,ibid., 711; Haskett v. Tyrrell, ibid., 715; Comrs. v. Bonner, 153 N.C. 69;Murphy v. Webb, 156 N.C. 406; Pritchard v. Comrs., 159 N.C. 638;Construction Co. v. Comrs., 160 N.C. 306; Comrs. v. Comrs., 165 N.C. 634;Swindell v. Belhaven, 173 N.C. 3.

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