Vetco Concrete Company v. TROY LUMBER COMPANY

124 S.E.2d 905 (1962) 256 N.C. 709

VETCO CONCRETE COMPANY
v.
TROY LUMBER COMPANY.

No. 381.

Supreme Court of North Carolina.

April 18, 1962.

Weston P. Hatfield, Winston-Salem, for plaintiff.

David H. Armstrong, Troy, for defendant.

DENNY, Chief Justice.

The defendant assigns as error the refusal of the court below to sustain its motion for judgment as of nonsuit at the close of all the evidence.

The plaintiff's evidence establishes unequivocally that all the materials furnished by it which went into the construction of residences built on defendant's lots were furnished pursuant to an express contract between the plaintiff and the Fore-Taylor Building Company, a corporation. The plaintiff's evidence goes further and affirmatively establishes the fact that the materials were not sold on the credit of Troy Lumber Company.

It is equally clear from plaintiff's evidence that the plaintiff never entered into any agreement with the defendant to pay for the materials it furnished Fore-Taylor Building Company. Moreover, it never knew that the defendant Troy Lumber Company owned any of the lots on which Fore-Taylor Building Company constructed residences until all the materials had been sold and delivered to Fore-Taylor Building Company and the account was four or five months past due.

It is a well established principle that an express contract precludes an implied contract with reference to the same matter. Ranlo Supply Co. v. Clark, 247 N.C. 762, 102 S.E.2d 257; Jenkins v. Duckworth & Shelton, Inc., 242 N.C. 758, 89 S.E.2d 471; Crowell v. Air Lines, 240 N.C. 20, 81 S.E.2d 178; McLean v. Keith, 236 N.C. 59, 72 S.E.2d 44; Morganton Manufacturing & Trading Co. v. Andrews, 165 N.C. 285, 81 S.E. 418, Ann.Cas.1916A 763; Lawrence v. Hester, 93 N.C. 79; Klebe v. United States, 263 U.S. 188, 44 S. Ct. 58, 68 L. Ed. 244; 12 Am.Jur., Contracts, Section 7, page 505; 17 C.J.S. Contracts § 5, page 321 et seq.

It is stated in 12 Am.Jur., Contracts, Section 7, page 505: "There cannot be an express and an implied contract for the same thing existing at the same time. It is only when parties do not expressly agree that the law interposes and raises a promise. No agreement can be implied where there is an express one existing," citing, among other cases, Manufacturing Co. v. Andrews, supra, and McLean v. Keith, supra. It is further stated in a footnote that, "Perhaps it is more precise to state that where the parties have made a contract for themselves, covering the whole subject matter, no promise is implied by law.

"The same rule has been applied to benefits conferred under a special contract with a third person. When there is a contract between two persons for the furnishing of services or goods to a third, the latter is not liable on an implied contract simply because he has received such services or goods. Walker v. Brown, 28 Ill. 378, 81 Am.Dec. 287; Massachusetts General Hospital v. Fairbanks, 129 Mass. 78, 37 Am.Rep. 303; Sullivan v. Detroit, Y. & A. A. R. Co., 135 Mich. 661, 98 N.W. 756, 64 L.R.A. 673, 106 Am. St. Rep. 403."

The case of Ranlo Supply Co. v. Clark, supra, is directly in point. There, the defendant's son, Floyd Clark, engaged John F. Smith, to furnish labor and materials necessary to construct a house on land owned by the defendants. The plaintiff furnished materials pursuant to an agreement with Smith. The plaintiff never entered into any agreement with the defendants to pay for the materials furnished, nor did it discuss the subject with them until after the materials were purchased by Smith and used by him in the construction of the house. This Court held, under these facts, that there was no implied contract under which the defendants were liable for the value of the materials furnished by the plaintiff. This Court stated:

"* * * (W)hatever contract was made with the plaintiff with respect to the purchase of these materials was made with Smith and not with the owners of the property.

"This Court, in the case of Morganton Manufacturing & Trading Co. v. Andrews, 165 N.C. 285, 81 S.E. 418, 420, Ann.Cas.1916A, 763, said: ``* *

(I)t is a well-recognized principle that there can be no implied contract where there is an express contract between the parties in reference to the same subject-matter.' Lawrence v. Hester, 93 N.C. 79." The Court affirmed the judgment of nonsuit entered in the trial below.

In the case of Massachusetts General Hospital v. Fairbanks, supra, the Court said: "The evidence did not justify any inference that the defendant became liable to the plaintiff for her board and support. The plaintiff having received her under the express contract with Towne and Wright to pay the plaintiff, there was no implied contract on her part to pay anything. There is no room for an implied contract where an express contract exists. * * * If A. contract with B. to furnish board at his expense to fifty men in his employ, and B. furnishes it, there is no implied contract on the part of the boarders to pay each for his own board. And this, not because they are employed by A., but because the board was furnished on A.'s promise to pay for it. In the numerous cases in which the question has arisen to whom was credit given, no express contract in writing, absolute in its terms, existed, and in the absence of such express contract the effort was to ascertain from the facts surrounding the transaction, to whom credit was given, as an element in determining with whom the contract was made * * *."

Likewise, in Walker v. Brown, supra, there was an express contract with third parties to do certain demolition work and to make certain excavations. An action was brought against Walker, plaintiff in error, and a judgment was obtained against him. On appeal, the Supreme Court of Illinois said:

"The error in this whole proceeding arises upon the assumption, that the plaintiff in error might become liable, under the implication of law, that he should pay the reasonable worth of services, beneficial to him, bestowed upon his property, with his knowledge and acquiescence, notwithstanding such services were rendered under an express agreement with another person.

"An express contract, executory in its provisions, must totally exclude any such implication. One party agreed, in consideration of the other to pay, to render the service; the other, in consideration of the promise to render the service, agrees to pay. One is the consideration and motive for the other, and each equally excludes any other consideration, motive, or promise."

In the instant case, the plaintiff having proved an express contract with Fore-Taylor Building Company for the purchase of the materials used in the construction of houses in Cedar Forest Estates, it was error for the court to submit the case to the jury on the theory of an implied contract on the part of the defendant to pay for materials sold and delivered to another under an express contract.

The defendant's motion for judgment as of nonsuit should have been allowed.

Reversed.

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