Edgewood Knoll Apartments, Inc. v. Braswell

80 S.E.2d 653 (1954) 239 N.C. 560

EDGEWOOD KNOLL APARTMENTS, Inc.
v.
BRASWELL et al.

No. 108.

Supreme Court of North Carolina.

March 17, 1954.

Harkins, Van Winkle, Walton & Buck, Asheville, for plaintiff appellee.

Chas. G. Lee, Jr., Asheville, Cochran, McCleneghan & Miller, Charlotte, for defendants Braswell and Byrum, appellants.

Meekins, Packer & Roberts, Asheville, for defendant Casualty Co., appellant.

WINBORNE, Justice.

The record and cases on appeal of the defendants, now before the Court, comprise three hundred sixty-one pages, of which eighty-one are devoted to a grouping of assignments of error. The appellants Braswell set forth sixty-eight assignments of error based upon exceptions taken during the course of the trial, and to the charge as given to the jury, to denial of request for instruction and to failure to charge as required by G.S. § 1-180 as amended, and in brief filed preserve twenty-eight of them. The remaining forty are not mentioned in the brief, nor is any reason or argument stated, or authority cited in support of them and, hence, are deemed to be abandoned. See Rule 28 of the Rules of Practice in the Supreme Court of North Carolina. 221 N.C. 544, at page 562, which is uniformly applied on appeals to this Court. And appellant United States Casualty Company sets forth one hundred seven assignments of error based upon exceptions taken during the course of the trial, and to the charge as given to the jury, to denial of request for instruction, and to failure to charge as required by G.S. § 1-180, as amended, and in brief filed preserves fifty of them. The other fifty-seven are not mentioned in the brief, nor is any reason or argument stated, or authority cited in support of them, under the above rule, and, hence, are deemed to be abandoned.

Appeal of Defendants Braswell.

At the outset it may be noted that though the defendants Braswell entered exceptions to the denial of their motions aptly made for judgment as of nonsuit, their assignments of error based thereon are among those abandoned as above recited. Indeed, a reading of the evidence offered by plaintiff, including admissions by Braswell in their answer, and orally upon the trial, all as shown in the record and case on appeal, discloses sufficient evidence to take the case to the jury upon the issues raised by the pleadings, and to support a verdict against them for breach of contract as alleged in the complaint.

However, Braswell does present for consideration assignments of error which merit express consideration.

1. Assignments of error Numbers 3, 4, 25, 26 and 27, based upon exceptions Numbers 5, 6, 40, 41 and 42, relate to the refusal of the court to permit Braswell "to introduce in evidence the complaint and portions thereof in an action pending in Superior Court of Buncombe County" brought by plaintiff here against Robinson Brothers Contractors, Inc., and St. Paul Mercury Indemnity Company of St. Paul, defendants. In respect thereto, the case on appeal discloses that Richard L. Coleman, President of plaintiff corporation, under cross-examination by counsel for Braswell, testified that such a suit was pending, and he identified the complaint, verified by him, and filed in court in such action. Then he was asked about the language of paragraph 9 of that complaint. Objection thereto was sustained.

But, after argument in the absence of the jury, and the jury having returned, the witness answered: "Yes, I. alleged in the complaint and swore to it in paragraph 9": Then follows what purports to be the wording of paragraph 9. The witness, explaining, said: "When I say buildings, I mean the buildings constructed and erected by Robinson Brothers * * * the same apartment project that I am referring to in this suit against Braswell."

And when Braswell was introducing evidence the complaint so identified by the President of plaintiff corporation was offered, and, upon objection, excluded. Likewise the caption of the complaint and paragraph 9 were offered, and upon objection, were excluded.

The point is made that the complaint, and paragraph 9 so offered, would disclose that plaintiff is there charging that Robinson Brothers, the general contractors, failed to construct the buildings in accordance with the plans, resulting in the roofs of the buildings leaking, and thereby damaging the plaster and other parts of the inside of the buildings. But defendant has the benefit of the fact that a suit against Robinson Brothers was pending, and of what is alleged in paragraph 9 of the complaint therein.

True, it is a rule of evidence that if a party in one action admits a fact in his pleading, such admission is usable against him as an evidential admission in another action between the same or different parties. See Stansbury's North Carolina Evidence § 177; also Grant v. Gooch, 105 N.C. 278, 11 S.E. 571; Middleton v. Hunter, 195 N.C. 418, 142 S.E. 325; Burlington Hotel Corp. v. Dixon, 196 N.C. 265, 145 S.E. 244; Odom v. Palmer, 209 N.C. 93, 182 S.E. 741. However, it does not appear here that the matters to which these assignments relate are violative of this rule.

Indeed, it is not deemed that defendant has been prejudiced by the rulings made by the trial court. For a reading of the charge discloses that the trial court expressly instructed the jury "that the plaintiff can recover only such damages as it has proven by the greater weight of the evidence was caused by the breach of the contract on the part of the defendants Braswell, and for none other".

II. Assignments of error Numbers 29, 30, 31, 32, 33 and 34, based upon exceptions Numbers 44, 45, 46, 47, 48 and 49 respectively, are directed to the refusal of the court to permit defendants Braswell to introduce evidence tending to show that Zeb V. Robinson, Vice-President of the plaintiff, agreed that vermiculite might be used in lieu of sand-plaster in the bathrooms.

While the evidence discloses that Robinson was President of Robinson Brothers Contractors, who had the general contract with plaintiff for the construction of the project here involved, and that he was Vice-President of the plaintiff corporation, appellee contends, and we hold properly so, that there is no evidence that Robinson was an agent of plaintiff for the purpose of varying, and clothed with authority to vary the terms of the written contract between plaintiff and Braswell.

In order for such evidence to be competent, defendants were required to show two things, first, that Robinson was an agent of plaintiff. corporation for this purpose, and, second, that he was clothed with authority to vary the terms of the contract. See Biggs v. North Carolina Home Ins. Co., 88 N.C. 141; Ferguson v. Davis & Rankin Bldg. & Manuf'g Co., 118 N.C. 946, 24 S.E. 710; Land Co. v. Crawford, 120 N.C. 347, 27 S.E. 31; Willis v. Atlantic & D. R. Co., 120 N.C. 508, 26 S.E. 784; Bank of Morganton v. Hay, 143 N.C. 326, 55 S.E. 811; Floars v. Ætna Life Ins. Co., 144 N.C. 232, 56 S.E. 915; Thompson v. Green River Power Co., 154 N.C. 13, 69 S.E. 756; Hall v. Presnell, 157 N.C. 290, 72 S.E. 985, 39 L.R.A.,N.S., 62; Bank of Glade Spring v. McEwen, 160 N.C. 414, 76 S.E. 222; Wynn v. Grant, 166 N.C. 39, 81 S.E. 949; Jones v. Gate City Life Ins. Co., 216 N.C. 300, 4 S.E.2d 848.

The thread of decision in these cases is aptly expressed by Ruffin, J., in the Biggs case, supra, in this fashion: "When one deals with an agent it behooves him to ascertain correctly the extent of his authority and power to contract. Under any other rule, every principal would be at the mercy of his agent, however carefully he might limit his authority." To this the writer added: "It is true the power and authority of an agent may always be safely judged by the nature of his business and will be deemed to be at least equal to the scope of his duties." Testing the power and authority of Robinson by the nature of his business, the evidence discloses that even though he was Vice-President of plaintiff corporation, the nature of his business in respect to the project at Edgewood Knoll was that of principal contractor under contract with plaintiff corporation for the construction of the 166-building units. The scope of his duties in this respect is not that of representative of the principal. Rather the evidence tends to show that the President of plaintiff was its representative.

III. Assignments of error Nos. 65 and 66, based on Exceptions Nos. 113 and 114, are directed to alleged failure of the trial court "to state in a plain and clear manner the evidence in the case and declare and explain the law arising thereon as required by G.S. § 1-180".

This statute G.S. § 1-180 was rewritten by Chapter 107, Session Laws 1949, and as so rewritten declares in pertinent part that the judge, in giving a charge to the petit jury, "shall declare and explain the law arising on the evidence given in the case." But "he shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided the judge shall give equal stress to the contentions of the plaintiff and defendant in a civil action * * *."

In the case in hand the exceptions taken are, No. 113, that "the court failed to sum up for the jury an array of the facts arising on the evidence the circumstances under which the jury should have, as a matter of law, answered the second issue No"; and No. 114, that "the court failed to state the contentions of the defendants Braswell with the impartiality as required by law, and emphasized the contentions of the plaintiff throughout the charge with a heavy over-balance in the plaintiff's favor, and to the prejudice and injury of the defendants Braswell".

The chief argument advanced is that the case on appeal discloses that the trial judge devoted more words, as shown by the number of printed lines, in stating contentions of plaintiff than in stating those of defendants. This is not the test. It is a question whether the judge gives "equal stress" to the contentions of the plaintiff and of the defendant. Otherwise than as above stated appellants Braswell fail to point out wherein the judge failed to give "equal stress". The exceptions are broadside, and, too, objection was not made at the time and will not now be entertained. See Poniros v. Nello L. Teer Co., 236 N.C. 145, 72 S.E.2d 9. Indeed, the record fails to disclose that unequal stress, or emphasis was displayed by the trial judge in stating the contentions of the respective parties.

Defendants Braswell also assign as error portions of the charge as given, refusal to charge as requested, the exclusion of evidence offered, denial of motion to strike answer of witness, and denial of formal motions. These have been considered, and express treatment of each is deemed unnecessary since no prejudicial error is made to appear.

Therefore, on the Braswell appeal, we find

No Error.

Appeal of United States Casualty Company.

The appellant Casualty Company brings forward among others its assignments of error Numbers 39 and 54, based upon exceptions Numbers 39 and 55 taken to denial of its motions aptly made for judgment as of nonsuit.

While it does not debate or question the sufficiency of the evidence to support a finding that defendants Braswell breached their contract in the respects alleged in the complaint, U. S. Casualty Company advances three grounds upon which it contends that it is entitled to judgment as of nonsuit.

It is contended (1) that plaintiff's action was not commenced within the time limited in the second condition of the bond, as pleaded in its further answer and defense; (2) that plaintiff did not give notice as required in the first condition of the bond; and (3) that plaintiff is not the real party in interest, as disclosed by its own evidence. These are considered seriatim.

In this connection it is appropriate to bear in mind: (1) That in the premises of the bond, after referring to the contract between plaintiffs and Braswell and its terms, all as quoted hereinbefore in statement of uncontroverted facts, it is recited that "the contract, plans and specifications are hereby made a part hereof", that is, of the bond; and (2) that the only affirmative defense pleaded by the United States Casualty Company, in its further answer and defense, is that, under the provisions of paragraph two of the conditions of the bond, this action is barred for that it was not instituted within the time limited.

I. And this leads to consideration of the first ground above stated upon which appellant, defendant surety, relies for judgment as of nonsuit.

In Carolina Builders Corp. v. New Amsterdam Casualty Co., 236 N.C. 513, 73 S.E.2d 155, 156, this Court restated the well established principle in respect of a contractor's performance bond in this manner: "The obligation of the bond is to be read in the light of the contract it is given to secure. The extent of the engagement entered into by the surety is to be measured by the terms of the principal's agreement."

Bearing this principle in mind, it is true that in the second condition of the bond it is provided that "no suit, action or proceeding for recovery hereunder by reason of any default whatever shall be had and maintained on this bond unless the same shall be brought within twelve (12) months from the date fixed in said contract for its completion * * *". And the appellee contends, and we hold rightly so, the contract between plaintiff and defendants Braswell, made a part of the bond, fixed the date for the completion of the contract, rather than the date of the completion of the work,—that the contract is bilateral, and is not completed until fully performed by both parties. It is pointed out that paragraph 4 of the contract provides that "the balance of the contract price shall be paid when apartment project has been completed and approved and final disbursements made under the FHA loan", and that the date when this occurred is made certain by the evidence offered upon the trial.

The evidence offered by plaintiff, and admissions made by Braswell upon the witness stand tend to show that this date was 19 December, 1950. As to this, the witness Charles L. Hayes, inspector for FHA testified: "The date of the final report was on December 4, as I recall, 1950. On the basis of that report, the funds were disbursed in connection with the loan." And all the evidence tends to show, and appellant Casualty Company, in brief filed on this appeal, states that on December 19, 1950 final payment was made by the plaintiff to the defendants Braswell in the amount of $7,960. And this action was instituted within one year thereafter, to wit, 29 November, 1951.

Authorities cited by appellant, Casualty Company, have been considered, but in the light of the interpretation of the record and case on appeal, error in this respect is not made to appear.

II. As to the second ground advanced by the appellant, defendant Casualty Company, that is, that plaintiff did not give notice as required in the first condition of the bond: It is appropriate to direct attention (a) to paragraph eleven of plaintiff's complaint, wherein it is alleged that written notice had been given to defendants Braswell "and to the defendant United States Casualty Company" of the default by Braswell in the performance of the contract, and (b) to the answer thereto by defendant United States Casualty Company, wherein it admits that plaintiff forwarded to it a copy of a letter addressed to defendants Braswell alleging certain defaults by them in the performance of the contract in question. And in brief filed in this Court the appellant, United States Casualty Company, concedes (1) that in its answer it did not plead as a defense failure to give notice, and (2) that the requirement of notice is a condition attached to the remedy, and ordinarily the breach of such condition is one to be pleaded by the defendant as a matter of defense.

Be that as it may, it appears that in the trial below the burden of proof as to the fourth issue, relating to the plaintiff giving notice, was put upon plaintiff—and the jury answered the issue in the affirmative— and there is sufficient evidence to support the finding.

In this connection it is significant that appellant, the defendant United States Casualty Company, moves in this Court to be permitted to amend paragraph 11 of its answer to the complaint by pleading as a defense failure of plaintiff to give timely and proper notice. However, this Court, in the light of the factual situation in hand, being of opinion that the ends of justice did not require it, nor would the ends of justice be promoted by the granting of the motion, denies the motion.

III. And as to the third ground for nonsuit as contended for by the appellant, defendant Casualty Company, that plaintiff is not the real party in interest as disclosed by its own evidence:

In this connection, plaintiff alleges in paragraph 5 of the complaint in respect to the bond executed by defendants Braswell as principal, and United States Casualty Company, as surety, "that a copy of said bond is hereto attached and marked ``Plaintiff's Exhibit A' and made a part hereof the same as if expressly copied herein". The U. S. Casualty Company, answering, avers that "The allegations contained in paragraph 5 are admitted". And the bond provides "that it shall not, nor shall any interest therein or right of action thereon be assigned without the prior written consent of the surety, duly executed * * *" as indicated. The copy of the bond so attached bears no endorsement or assignment.

Then in the course of the cross-examination of the President of plaintiff corporation, recalled to the witness stand, counsel for defendant, surety, inquired as to the whereabouts of the original bond, and sought to show that the bond had been assigned. The President testified that he had tried to get the surety to agree to an assignment, but it would not agree to do so; and that then he took the bond to Greensboro, N. C., and delivered it to the bank along with other papers in connection with a loan for the FHA project in question.

Following this a subpoena duces tecum for a named vice-president, or a named assistant cashier, of Security National Bank, Greensboro, N. C., to be and appear at court at certain time to testify in behalf of defendant United States Casualty Company, and to have with him then and there before said court Standard Contract Bond, in question, "in connection with FHA 608 Project" etc. Pursuant thereto A. T. Preyer, Jr., assistant cashier of Security National Bank of Greensboro, N. C., appeared, and produced the bond that was in the bank in Greensboro. The endorsement on the back of it reads: "For valuable consideration, we hereby assign all our right, title and interest in and to the within bond to Security National Bank of Greensboro and Federal Housing Commissioner. This 7th day of November, 1949. Edgewood Knoll Apartments, Inc. by Richard L. Coleman, President. Attest: F. B. Short, Secretary", with the corporate seal affixed.

And on cross-examination the witness testified: "This bond was brought down here to our bank at the time the Edgewood Knoll Apartments borrowed a sum of money through the bank for construction loan. We handled the construction loan. We have no interest whatever in this bond. We never received any assignment of the United States Casualty Company to this assignment to my knowledge, any consent to an assignment."

Manifestly, the assignment of the bond was not completed. Plaintiff had no right to assign it, without the consent of defendant surety,—and the consent was not given. Hence the point made is without merit.

The appellant, Casualty Company, brings forward in its brief assignments of error based upon exceptions relating to admission, and to exclusion of evidence, in many aspects, to the settlement and submission of the issues, to the refusal to submit issues tendered, to portions of the charge as given, to the failure of the court to charge as required by G.S. § 1-180, to the failure of the court to charge as requested, to denial of motion to allow this appellant credit for last payment of $7,960 made by plaintiff to defendant 19 December, 1950, and to denial of formal motions. All these have been duly considered, and express treatment of each would serve only to unduly extend this opinion, since no prejudicial error in them is made to appear.

Therefore, on the Casualty Company's appeal we find no error.

On Appeal of Braswell—No Error.

On Appeal of U. S. Casualty Company— No Error.

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