Brown v. Bowers Construction Co.

73 S.E.2d 147 (1952) 236 N.C. 462

BROWN et ux.
v.
BOWERS CONST. CO. et al.

No. 112.

Supreme Court of North Carolina.

November 19, 1952.

Ward & Bennett, Williams & Williams, Asheville, for plaintiffs appellants.

Smathers & Meekins, Asheville, for defendant appellee.

WINBORNE, Justice.

The questions involved on this appeal as stated in plaintiffs', appellants', brief are these:

"1. Did the court err in sustaining objections of defendant Bowers Construction Company to certain evidence?

"2. Did the court err in nonsuiting the case as to defendant Bowers Construction Company?"

We are of opinion that upon consideration of the record and case on appeal both questions merit an affirmative answer.

I. The two assignments of error based upon exceptions (1) to the refusal of the court, upon objection by defendants, to admit in evidence, when offered by plaintiffs, the option and contract, Exhibit P-2, executed by the Trustees of the J. M. Westall Trust to and with the State Highway and Public Works Commission in respect to purchase of right of way for highway purposes over the Westall Trust property at the point where the bridge over the river was later constructed, and on which plaintiffs' property, here involved, was located, and (2) to the exclusion of oral testimony tending to show that the State Highway and Public Works Commission had exercised the option as provided in the contract.

This evidence is pertinent and material to the controversy at issue. It is seen by reference to the contract that "This option also includes the purchase of a frame garage", but that "other buildings on the right of way to be removed therefrom and reconstructed on property belonging to the Trust, without prejudice to occupancy and rights of tenants, under the general contract and at the expense of the State Highway Commission". And the matter of the removal and reconstruction of the buildings is made a part of the consideration to be paid by the State Highway and Public Works Commission.

The language of these provisions is plain, and, by fair interpretation, clearly shows an intent upon the part of the Trustees of the J. M. Westall Trust to act in the interest, and for the benefit of their tenants—these plaintiffs.

And, by reference to the contract between the State Highway and Public Works Commission and Bowers Construction Company it clearly appears that the State Highway and Public Works Commission projected therein special provisions, of like character, intended to be in the interest, and for the benefit of the Westall tenants, who are the plaintiffs.

And it is a well-settled principle of law in this State that where a contract between two parties is made for the benefit of a third person, or party, the latter is entitled to maintain an action for its breach. Gorrell v. Greensboro Water Supply Co., 124 N.C. 328, 32 S.E. 720, 46 L.R. A. 513; Parlier v. Miller, 186 N.C. 501, 119 S.E. 898; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A.L.R. 428; Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Chipley v. Morrell, 228 N.C. 240, 45 S.E.2d 129; Coleman v. Mercer, 229 N.C. 245, 49 S.E.2d 405; Canestrino v. Powell, 231 N. C. 190, 56 S.E.2d 566, and cases there cited.

II. Now as to assignment of error based upon exceptions to the ruling of the trial court in granting at close of plaintiffs' evidence motion of defendant Bowers Construction Company for judgment as of nonsuit as to it.

The parties do not debate in this Court the question as to sufficiency of the evidence, offered on the trial below, to take the case to the jury as to the defendant G. E. Crouch. Hence the sole question here for decision is whether or not there is evidence tending to show obligation on the part of Bowers Construction Company to observe the special provisions of the general contract with the State Highway and Public Works Commission assumed by it in respect to removal and relocation of the buildings and contents of buildings, after it had sublet to defendant G. E. Crouch the performance of the work of removing and relocating the buildings. This is a matter of law to be determined upon proper interpretation of the special provisions of the general contract.

By referring to the "Special Provisions" of the general contract it appears under heading "3-1. Construction Methods" that "Buildings or structures shall be prepared for, removed, and be placed in their new locations, * * * left plumb and level and in as good condition in all respects as they were before moving * * *"; and that "the contents of all buildings or structures shall be moved and relocated along with the building or structure to its new site"; and that "in the event that it is not feasible or possible to move the building or structure together with the contents therein, the contents shall be removed from the building or structure at its original location and same replaced in the relocated building or structure"; and that "such precautions as necessary shall be taken to prevent damage or loss of any kind to the contents thereof".

A further special provision under heading "5-1. Basis of Payment" is that "Payment will not be made for this item until an owner's release is secured from the property owner or owners, certifying that the work has been performed to the property owner's satisfaction and that the State Highway and Public Works Commission and the contractor are released from all responsibility in connection with this work * * *".

And it is further provided under heading "Required Contract Provisions for Federal Aid Projects" that "no portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer or his authorized representative * * *"; and that "consent to sublet, assign or otherwise dispose of any portion of the contract shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract".

In the light of these provisions a legal duty is assumed by, and, by operation of law, imposed upon Bowers Construction Company which it cannot escape by assignment. And this is true whether the performance required is a personal performance or not. Corbin on Contracts, Vol. 4, Sec. 865. See also Atlantic & N. C. R. Co. v. Atlantic & N. C. Co., 147 N.C. 368, 61 S.E. 185, 23 L.R.A.,N.S., 223; North Carolina Bank & Trust Co. v. Williams, 201 N. C. 464, 160 S.E. 484; Virginia Trust Co. v. Webb, 206 N.C. 247, 173 S.E. 598.

Appellees however point to the allegations of the complaint of plaintiffs purporting, as they contend, to allege another and special contract between G. E. Crouch and plaintiffs by which he agreed "that the said property would be moved in said buildings to the new location in as good condition as if the same had never been moved", and that the buildings, after removal, would be "left plumb and level, and in as good condition in all respects as they were before moving".

True there are such allegations in the complaint. But the complaint also sets forth the special provisions of the general contract. And, in view of the fact that the special agreement attributed to Crouch is in effect a repetition of the special provisions of the general contract, it may be fairly taken as supplemental thereto and not in substitution for the special provisions of the general contract.

The assumption of the assignor's duty by the assignee merely gives to the other party a new and added security. Corbin on Contracts, Vol. 4, Sec. 866.

Since there must be another trial, it is not deemed necessary to expressly consider other assignments of error. The matters to which they relate may not then recur.

For reasons stated above the judgment from which this appeal is taken, is reversed.