Tbe plaintiff contended, tbat be bad performed tbe contract on bis part, witb reasonable skill, and in a workman-like manner, and tbat whatever defects tbat may bave later appeared, be offered, witb dispatch, to remedy, and tbat all building, both as to labor and material, was done under tbe personal observation of one of defendant’s owners, one Hollar, and tbat tbe building was, when completed,-accepted, and payments made to him, and tbe reason first given for not paying tbe balance was tbat tbe defendant did not bave enough money.
Tbe defendant insisted tbat tbe work was done in a negligent manner and tbat plaintiff knew when be entered into tbe contract tbat tbe building, an addition to a knitting mill, was to be used for mill purposes, and tbat heavy and valuable machinery would be put therein. Defendant also contended tbat tbe wall gave way; tbe roof leaked and damage bad resulted therefrom.
Defendant’s first assignment of error is to tbe admission in evidence from plaintiff tbe statement “tbat be (plaintiff) does a volume of $125,000 worth of business a year.”
Plaintiff is a building contractor. He further says: “I live at Hickory, N. C. I bave lived there 39 years. My work during tbat time has been carpenter’s work, and construction. In connection witb this construction work, I run a lumber plant and planing mills. I do furnish tbe material for tbe bouses I build.”
Tbe defendant’s exception does not single out tbe statement as to volume of business. This is not evidence of good character as a defense to a charge of fraud
(Norris v. Stewart,
Assignment No. 2 is to tbe admission of tbe testimony of plaintiff tbat Lon Hollar “accepted” tbe building, and to tbe charge giving plaintiff’s contention tbat be put up tbe building and there was no “kick” on tbe material, and when be rendered bis itemized statement, tbe prices were not objectionable to defendant. Lon Hollar was one of tbe owners of tbe defendant, in charge of its business. Acceptance may be thus proved: It is a fact, witb a mental act of intent to receive as one’s own,
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or for the owner, as a compliance with the required duty of the offerer— here the builder. Black’s Law Diet., 2 ed., 12. It may relate to a building, or personal property, or other thing which is offered actually or constructively.
Rodgers v. Phillips,
The defendant’s assignments of error 3 and 4, are directed to the court’s refusal to admit evidence as to defendant’s loss from damage to yarns due to a leak in the roof, waste of material and injury to machine on account of effect of sinking of building, and the loss of profits.
The contract was that plaintiff furnish labor and material and supervise construction. No architect’s plans and specifications were had.
Lon Hollar testified: “I was there sometime during every day, that is, every day part of the time, and some days all day. I was manager of the mill. I am over the superintendent. I am the owner. I was there and saw the work going on and saw some of the material being used. I could have seen all of it. I saw the men that worked there. I saw when they came and what they were doing. Mr. Fry did the grading for the foundation for me. There was an old cesspool where the building is. Mr. Fry covered up the cesspool. There was concrete around it. I did not think that that would be liable to sink. Mr. Moss said he would fix that. Sure, I know it was there and knew they were covering it up. He (Mr. Fry) did the grading for me. That is where one of the pillars is that sank, but there are several other pillars that sank.”
He further says: “After the building was completed and Mr. Moss left there, we moved the machinery in. I don’t know what caused the roof to leak.”
We do not think the contract and these facts present any legal basis for the testimony offered.
*648 Tbe court charged tbat it was plaintiff’s duty to use ordinary still in tbe construction and tbat if be failed in tbis respect, defendant would be entitled to recover tbe cost of putting tbe building in proper condition.
It is tbe duty of tbe builder to perform bis work in a proper and workman-like manner
(Byerly v. Kepley,
Under instructions, free from error, tbe jury has necessarily found tbat plaintiff has performed bis contract, both substantially and fully. Tbe foundation was laid under defendant’s observation and where be bad excavated for it. If tbe old cesspool was not a proper place to put tbe wall foundation, tbe plaintiff could not be held liable therefor when be did not select tbe foundation site, but used tbe excavated foundation as selected and excavated by tbe defendant.
. Tbe instructions were not contradictory. Tbe roof might leak, and tbe windows might not now fit properly, and tbe bouse may have sunk on account of tbe giving way of tbe soil where tbe old cesspool- was, regardless of tbe skill and diligence of tbe plaintiff. Tbis was tbe view submitted in tbe charge and tbe evidence supports tbis view.
Tbe reasonable cost of tbe labor to remedy any defects for which plaintiff was responsible was tbe correct rule under tbe instant contract. Tbe building bad been taken and put to use by defendant. It was certainly substantial compliance on plaintiff’s part on defendant’s own testimony.
Poe v. Brevard,
This rule of “substantial compliance” is only applied when a builder has undesignedly violated the strict terms of his contract, and the owner has received and retained the benefit of the builder’s labor and material, and the builder is ready to remedy. The defects must be trivial and slight, such as are covered by the maxim
de minimis non curat lex.
The owner is entitled to damages by reason of the failure to perform strictly.
Howie v. Rea,
The owner was advertent to the entire course of construction and the jury was within the evidence if it found the owner’s consent applied to the causes of the defects.
We have examined all the exceptions and none of them show prejudicial error. The charge fairly presented every contention of the parties. The controversy was largely in the domain of fact. We find in the trial
No error.