Kohler v. JA JONES CONSTRUCTION COMPANY

201 S.E.2d 728 (1974) 20 N.C. App. 486

Harold KOHLER
v.
J. A. JONES CONSTRUCTION COMPANY, a corporation.

No. 7326SC774.

Court of Appeals of North Carolina.

January 16, 1974. Certiorari Denied March 5, 1974.

Harkey, Faggart, Coira & Fletcher by Charles F. Coira, Jr., and Francis M. Fletcher, Jr., Charlotte, for plaintiff-appellee.

Warren C. Stack, Charlotte, for defendant-appellant.

Certiorari Denied by Supreme Court March 5, 1974.

HEDRICK, Judge.

The numerous exceptions and assignments of error brought forward and argued by defendant present for resolution the following principal issues: (1) What was the intent of the parties in the 6 October 1964 agreement? (2) Was there sufficient competent evidence to support the submission of the issues to the jury and to support the verdict rendered? (3) Did the trial court commit prejudicial error in the charge to the jury?

I.

The parties do not dispute the fact that they entered into an agreement on 6 October 1964 but rather their disagreement centers around the scope of such contract. Defendant corporation maintains that there was never any intention to compensate plaintiff for cash monies recovered by defendant in an indirect manner, while plaintiff contends that he is entitled to 5% of any cash monies recovered regardless of the direct or indirect form of such recovery. It is elementary that in construing a contract to ascertain the intention of the parties, the court must take note of the language used, the purpose to be accomplished by the contract, the circumstances of the parties when they made the contract, and the subject matter of the contract. Pike v. Trust Co., 274 N.C. 1, 161 S.E.2d 453 (1968); Sell v. Hotchkiss, 264 N.C. 185, 141 S.E.2d 259 (1965); DeBruhl v. Highway Commission, 245 N.C. 139, 95 S.E.2d 553 (1956). See also, Corbin on Contracts, Vol. 3, § 538, pp. 67-69 (1960). Furthermore, "[i]f there be no dispute in respect of the terms of the contract and they are plain and unambiguous, there is no room for construction. The contract is to be interpreted as written." Jones v. Realty Co., 226 N.C. 303, 37 S.E.2d 906 (1946). Applying these principles to the present case, we determine that the clear intent of the parties in the 6 October 1964 agreement was that plaintiff should recover 5% of all cash monies received from the Derbendi Khan Dam Project without regard to whether these monies were the product of direct payments to defendant or a result of indirect payments such as the sale of recouped equipment or a governmental award used by defendant to pay vendors and subcontractors of the project.

Several factors support the preceding conclusion. In the October agreement the word "all" appears before the words "cash monies" in that portion of the contract which reads, ". . . you will be entitled to 5% of all cash monies recovered on the Derbendi Khan Dam Project" (our emphasis). Defined in a plain, ordinary manner "all" is a pervasive, wide-ranging word and should not be limited to a narrow meaning as argued by defendant. Additionally, the October contract expressly excludes "any consideration for [plaintiff] for the return of our bank guarantees and removal of liquidated damages". Defendant having taken the step to expressly exclude this item from plaintiff's recovery, the conclusion necessarily follows that failure to expressly exclude other methods of recovery results in their inclusion by plaintiff in the total sum of cash monies subject to his 5%.

The final point to be made on the question of the intention of the parties is that the circumstances surrounding the October agreement reveal that defendant and its joint partners were in danger of incurring substantial losses in the Derbendi Khan Project and thus perhaps were susceptible to entering into what might in hindsight seem a bad bargain. Nevertheless, "[t]he agreement of the parties is controlling, and when the language is explicit, neither party may contend for an interpretation at variance with the language on the ground that the writing did not truly express his intent; nor may the courts grant relief merely because the contract is a hard one." 2 Strong, N.C.Index 2d, Contracts, § 12, p. 313.

II.

Next we must consider whether plaintiff successfully carried his burden of proving that defendant recovered certain "cash monies". Our discussion of this question necessarily includes defendant's contention that the court erred in admitting certain evidence. Evidence presented by the plaintiff plus cross examination of two of defendant's witnesses (the Treasurer of the defendant corporation and an employee of a subsidiary of defendant) disclosed that the Derbendi Khan partners had collected approximately $653,000.00 after 10 October 1964 as a result of the sale of equipment used in connection with the Derbendi Khan Project. Defendant at no time denied having received such proceeds but rather asserted, as we have already discussed above, that the agreement between the parties did not encompass payment to plaintiff for indirect "cash monies" received by defendant. The more difficult question is whether there was sufficient evidence to support inclusion of the so-called "award" in the total amount of "cash monies" out of which plaintiff was entitled to 5%. As to this point, defendant attacks as error the admission into evidence of certain testimony of H. Haywood Robbins which testimony was in deposition form due to the fact that Robbins was no longer living. The most objectionable portion of this testimony is set forth below:

"Q. Is that Thomas Mann?

MR. STACK: Objection. Overruled.

A. Yes.

MR. STACK: Move to strike the answer. Overruled.

EXCEPTION NO. 476

A. He was friendly with Mr. Kohler and I for some reason and he began to apply certain leverage to the Iraqian Government, through not only their, I think certain leverage was applied through, I don't think it, I know it, through other sources which we had contacted and had kept informed by memorandum and as a result the Iraqian Government paid to the . . . at least Mr. Jones, Jr. and Sr. told Mr. Kohler and I, and this was confirmed by the State Department, some nine hundred thousand dollars plus, I can't remember the exact figure.

MR. STACK: Move to strike the answer.

COURT: I am going to allow the motion as to the statement that this was confirmed by the State Department. * * *"

It is quite obvious that the answer given is not responsive to the question asked, however, as Justice Higgins stated in State v. Ferguson, 280 N.C. 95, 185 S.E.2d 119 (1971), "If an unresponsive answer produces irrelevant facts, they may and should be stricken and withdrawn from the jury. However, if the answers bring forth relevant facts, they are nontheless admissible because they are not specifically asked for or go beyond the scope of the question." The answer given by Robbins contained facts quite relevant to the subject under discussion and was properly admitted even though it exceeded the boundaries established by the question. Furthermore, the testimony of Robbins was corroborated by the introduction of other evidence relating to the "award". This additional evidence includes: (1) Kohler's testimony regarding the award and (2) Plaintiff's Exhibit No. 51, which is a copy of Decision No. 32 (the "award"). We have carefully examined the exceptions relating to the admission of testimony and find no prejudicial error therein. Furthermore, we are of the opinion that the evidence was sufficient to require the submission of the case to the jury and to support the verdict rendered.

III.

The final issue for discussion is whether the trial court committed error in its instructions to the jury. Defendant correctly points out two mistakes made by the trial court in its recapitulation of the facts and claims that these were prejudicial in nature. This contention is deemed nonmeritorious because slight inaccuracies in the statement of the evidence must be called to the court's attention in time to afford opportunity for correction, in order for an exception thereto to be considered, Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536 (1966); and defendant having failed to allert the court to these mistakes cannot now be heard to complain.

Defendant further contends that the trial court committed prejudicial error by expressing an opinion on the evidence in its instructions to the jury. We have carefully examined each of the exceptions upon which this contention is based and find that the court fairly, correctly, and adequately declared and explained the law arising on the evidence and expressed no opinion prejudicial to defendant in his recapitulation of the evidence.

Defendant has noted in the record 536 exceptions which he has grouped under 24 assignments of error. Some of these exceptions have been expressly abandoned and others are deemed abandoned under Rule 28 of the Rules of Practice in this Court, since defendant has advanced no argument or cited any authority in support thereof. The remaining exceptions have been carefully examined and considered by this court and found to be without merit.

We find no error in the trial of the superior court sufficiently prejudicial to warrant a new trial.

No error.

CAMPBELL and VAUGHN, JJ., concur.