Sims v. Oakwood Mobile Homes, Inc.

217 S.E.2d 737 (1975) 27 N.C. App. 25

W. M. SIMS, and wife Carol C. Sims, Plaintiffs,
v.
OAKWOOD MOBILE HOMES, INC. and Virginia Homes Manufacturing Corporation, Defendants. OAKWOOD MOBILE HOMES, INC., Third-Party Plaintiff,
v.
VIRGINIA HOMES MANUFACTURING CORPORATION, Third-Party Defendant.

No. 7510SC288.

Court of Appeals of North Carolina.

September 3, 1975. Certiorari Denied November 5, 1975.

Kimzey, Mackie & Smith by James M. Kimzey and Stephen T. Smith, Raleigh, for plaintiff-appellants.

Teague, Johnson, Patterson, Dilthey & Clay by Robert W. Sumner, Raleigh, for defendant-appellee Oakwood Mobile Homes, Inc.

Bailey, Dixon, Wooten, McDonald & Fountain by Wright T. Dixon, Jr., John N. Fountain, and Kenneth Wooten, Jr., Raleigh, for defendant-appellee Virginia Homes Manufacturing Corporation.

Certiorari Denied by Supreme Court November 5, 1975.

MARTIN, Judge.

Instead of proceeding against defendants for breach of contract or warranty, plaintiffs seek to recover in tort alleging that defendants negligently constructed and installed their mobile home.

Negligent performance of a contract may constitute a tort as well as a breach of contract, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done. Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893 (1955). See also Insurance Co. v. Sprinkler Co., 266 N.C. 134, 146 S.E.2d 53 (1966) and Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132 (1964).

The present case is unusual in that plaintiffs' injuries are confined to the subject matter of the sales contract—i. e. the mobile home. There has been no injury to the person or any property of plaintiffs other than the mobile home which is, according to plaintiffs' evidence, worth much less than what they paid for it. Nor does it appear that the mobile home, as constructed and installed, is capable of causing any harm to persons or other property as is ordinarily found in negligence actions. The manufacturer's liability in tort for mere loss on the bargain has been a troublesome question. Prosser, Handbook of The Law of Torts, § 101, pp. 665-7 (4th ed. 1971). Here, however, the manufacturer (Virginia) assumed responsibility for more than the safety of its product. Virginia undertook to construct the mobile home in accordance with plaintiffs' specifications. In addition, Virginia furnished the foundation plans for the mobile home and undertook to install the home on said foundation.

Viewing the evidence in the light most favorable to plaintiffs, there is sufficient evidence of negligence on the part of Virginia in the construction and installation of the mobile home which would require submission of the issue to the jury.

As for Oakwood, we affirm the directed verdict in its favor. There is no evidence of negligence on its part, nor do we find any relationship between Oakwood and Virginia as would render Oakwood answerable for the negligence of Virginia.

Reversed in part.

Affirmed in part.

BRITT and HEDRICK, JJ., concur.