Ashe v. Tudor N. Hall Associates, Inc.

ARNOLD, Judge.

Issues submitted to the jury in this case were as follows:

(1) Did the plaintiff and defendant enter into a building contract as alleged in complaint?

Answer: Yes

(2) Did the defendant breach this contract as alleged in complaint?

Answer: Yes

(3) What amount of damages, if any, are the plaintiffs entitled to recover of defendant?

Answer: $4,750

The crucial question we face on this appeal is whether the evidence, considered in the light most favorable to the plaintiffs, shows a breach of contract.

The contract includes the following specifications: “Foundation: 1. Concrete pier on concrete footings 2. Below frost line 3. Steel reinforcing rod in piers and footings.” Defendant’s employee who supervised the construction testified that “[t]he foundation was dug to below the frost line. The piers were made of cement blocks and were poured solid with steel rods reinforced.” This testimony is uncontradicted, and it is defendant’s position that this showing of compliance with the contract specifications settles the matter. Plaintiffs contend, however, that Paragraph Seven of the contract indicates that something more was required. That paragraph reads, in pertinent part: “This agreement covers construction of the above described residence on a clear and level lot. Should the slope or elevation of the lot be such as to require extra foundation block or fill dirt under the slab, pool deck, patio, drives or walks, over and above that which would be required for the normal two course foundation specified in the plans, the expense of same will be borne by the Owners.”

It is undisputed that plaintiffs’ house was constructed on a steep slope, and that both parties were aware of this before the contract was executed. We find that the ordinary meaning of the quoted portion of Paragraph Seven simply requires plaintiffs to pay for any extra fill dirt or foundation block that might be required during construction. Paragraph Seven does not affect the foundation specifications enumerated in the contract.

Moreover, there is neither allegation nor proof that the lack of fill or blocks in any way related to the defect in the chimney. The uncontradicted evidence shows that the problem with the chimney resulted because it was built on loose dirt. The question of whether defendant was negligent is not before us since plaintiffs did not appeal from the summary judgment entered in favor of defendant on the issue of negligence. (The possibility of tort liability for the negligent performance of a contract was discussed by this court in Ports Authority v. Roofing Co., 32 N.C. App. 400, 232 S.E. 2d 846 (1977), but rejected by our Supreme Court on appeal of that decision, 294 N.C. 73, 240 S.E. 2d 345 (1978).)

This action was for breach of a contract. We conclude that no evidence was presented to show a breach of contract. Therefore, denial of defendant’s motion for directed verdict was error. It is unnecessary to discuss defendant’s remaining assignments of error.

Reversed.

Judges Webb and Wells concur.