Dawson Ind., Inc. v. Godley Const. Co., Inc.

224 S.E.2d 266 (1976) 29 N.C. App. 270

DAWSON INDUSTRIES, INC.
v.
GODLEY CONSTRUCTION CO., INC.

No. 7526SC920.

Court of Appeals of North Carolina.

May 5, 1976. Certiorari Allowed July 14, 1976.

Fairley, Hamrick, Monteith & Cobb, by Laurence A. Cobb, Charlotte, for plaintiff appellant.

Ervin, Kornfeld & MacNeill, by Winfred R. Ervin and John C. MacNeill, Jr., Charlotte, for defendant appellee.

Certiorari Allowed by Supreme Court July 14, 1976.

BRITT, Judge.

Plaintiff states its assignment of error as follows:

"The Court's finding that the roof defects would not have occurred if the base sheet of the roofing material had been nailed to the roof, that there is no evidence to show any faulty or defective workmanship of materials, and that the construction of the building was done in accordance with the Contract and its conclusion that the building was constructed in strict accordance with the Contract and the Plans and Specifications and that the Defendant has not breached its contract with the Plaintiff.

"Exception No. 1 (R p 87); Exception No. 2 (R p 87); Exception No. 3 (R p 87); Exception No. 4 (R p 87)."

Our review in this case is confined to a consideration of the findings of fact and conclusion of law set out in plaintiff's assignment of error. N.C.R.App.P. 10. That being true, we will not consider questions raised by plaintiff unrelated to the assignment.

Three of plaintiff's exceptions relate to findings of fact 6, 7 and 8 or portions thereof. It is well settled that findings of fact by the trial court are conclusive when supported by competent evidence. Strong's N.C. Index 3d, Appeal and Error, § 57.2. We proceed then to determine if the challenged findings are supported by competent evidence.

First, plaintiff contends the court erred in that part of finding of fact 6 finding that the roof defects would not have occurred if the base sheet of the roofing material had been nailed to the roof. Plaintiff presented as its witness Thomas M. Driggers, a consulting engineer from Albany, Georgia, whom the court found to be an expert in construction and design. Mr. Driggers testified that in his opinion the root cause of the leaking roof was expansion of the structural steel, the building having been erected in the winter when the steel was at its most contracted position. He further testified that the expansion could have been avoided through the use of expansion joints but they were not required by the plans or specifications. Later on he testified (R. p. 32):

"The roofing material in this case was mopped on. It could have been nailed. Nailing would have retarded movement of the roofing. When the building moved, it would have been able to move somewhat without breaking. . . .

"In my opinion, nailing the roof materials would have minimized the problem. I would say that the base sheet would be able to move somewhat with the desk (sic [deck]) as it moved when it is nailed, rather than being glued directly to it, as the crack occurs and it pulls apart."

We hold that the evidence supports the finding that the leaks would not have occurred had the base sheet of the roofing material been nailed to the roof deck rather than laminated.

Plaintiff's next contention relates to finding of fact 7, "[t]hat there is no evidence in the record in this matter tending to show that any workmanship or materials supplied by the defendant were faulty or defective".

A careful review of the record discloses that while there might be some evidence tending to show faulty workmanship by defendant, this is of no avail to plaintiff. One of the crucial findings by the court is that part of finding 6 "[t]hat leaks in the roof in question were caused by normal expansion of the building which in turn caused a pulling apart of the roofing material from the roof deck . . ."; plaintiff has not challenged that finding in its assignment of error. When findings that are unchallenged, or are supported by competent evidence, are sufficient to support the judgment, the judgment will not be disturbed because another finding, which does not affect the conclusion, is not supported by evidence. 1 Strong's N.C. Index 3d, Appeal and Error, § 57.2.

We hold that while finding of fact 7 might be deficient, the error does not entitle plaintiff to a new trial since other findings, which are supported by the evidence or are not challenged, are sufficient to support the judgment.

Plaintiff contends the court erred in its finding of fact No. 8 "[t]hat the construction of the building in question by the defendant for the plaintiff was done in accordance with the contract between the parties hereto and in accordance with the plans and specifications as required by said contract."

The plans and specifications constitute the heart of the contract between the parties. Plaintiff's witness Driggers testified (R. p. 30):

"Based upon my examination of these (contract) documents and my inspection of the building my opinion is that it was built very similar to the way the drawings are drawn up. The details are not maybe as clear as would normally be done, but in general, I would say yes it was constructed fully in accordance with the Plans and Specifications."

Plaintiff's witness J. K. Bost testified (R. p. 64): "In my opinion the building was constructed according to the Plans and Specifications".

We hold that finding 8 is fully supported by the evidence.

Finally, plaintiff contends the court erred in concluding that "defendant constructed the building in question in strict accordance with the contract between the parties hereto and in strict accordance with the plans and specifications and has not breached its contract with the plaintiff".

Plaintiff argues that the court in concluding that defendant did not breach its contract with plaintiff did not take into consideration the question of implied warranty. Assuming, arguendo, that the question is properly presented to this court, we do not think that any implied warranty of livability is applicable to work on a commercial structure.

The court found, and plaintiff did not preserve an exception to the finding, that the contract between the parties provided that "the defendant warranted only that the workmanship and materials would be free from fault and defects". While recognizing that the doctrine of caveat emptor has long been the rule in North Carolina, plaintiff insists that our Supreme Court relaxed the rule in Hartley v. Ballou, 286 N.C. 51, 209 S.E.2d 776 (1974), as applied to purchasers of new buildings. Even if North Carolina law were applicable to the instant case, and it is not, Hartley is readily distinguishable as the rule declared in that case applies only to contracts for the sale of a new dwelling when the vendor is in the business of building dwellings.

The contract between the parties here specifically provides that "the law of the place where the Project is located" shall govern, therefore, Georgia law must be applied to the contract. Plaintiff has not cited, and our research has failed to reveal, any Georgia case that has extended the rule of implied warranties even as far as Hartley v. Ballou, supra.

In Cannon v. Hunt, 116 Ga. 452, 42 S.E. 734 (1902), the plaintiff owner instituted an action against the defendant builder based on breach of a construction contract because the roof of the building in question was leaking; the court held that the leaks were due to an improper method of applying the roofing material but that the method of application was within the contract specifications and did not constitute a breach of contract since the builder was not to be held accountable for unsatisfactory results.

In Batson-Cook Co. v. Pearce Roofing Co., 124 Ga.App. 835, 186 S.E.2d 358 (1971), the court found no implied warranty on behalf of the builder that a roof would be waterproof when the builder had fully complied with the specifications recommended by the manufacturer of the roofing materials specified in the contract.

We hold that the conclusion of law challenged by plaintiff is fully supported by valid findings of fact.

For the reasons stated, we conclude that plaintiff has failed to show prejudicial error, therefore, the judgment appealed from is

Affirmed.

PARKER and CLARK, JJ., concur.