136 S.E. 869 | N.C. | 1927
Plaintiff is a civil and consulting engineer and engaged in the business of laying out municipal and industrial enterprises, hydro-electric power plants and municipal waterworks. Ludlow Engineers, Inc., are engaged in like business, and J. L. Ludlow is general manager. Percy B. Ferebee is mayor, and the other defendants commissioners of the town of Andrews, N.C.
Plaintiff alleges, in substance, that on or about 5 February, 1923, the defendants, Percy B. Ferebee, mayor, S.E. Cover, J. W. Brown, *275 W. W. Ashe and J. B. Hoblitzell, commissioners of the town of Andrews, made and entered into a contract with the plaintiff, John D. Spinks, who was an independent contractor, together with the defendant, the Ludlow Engineers, Inc., and the defendant, J. L. Ludlow, which parties the plaintiff, John D. Spinks, called in, which contract provided, in substance, that the plaintiff, together with the defendant, Ludlow Engineers, Inc., and J. L. Ludlow, would make a preliminary survey of the proposed hydro-electric power plant, which the town of Andrews desired developed, and submit the same, together with an estimate of the cost of developing the said proposed hydro-electric power for the said town of Andrews, under and by terms of which said contract the said John D. Spinks, and his associates, were to receive for the preliminary report the sum of $800, and in case the report was favorable, that then for the supervision of the construction of said hydro-electric plant, the said plaintiff and his associates should receive the sum of six per cent of the cost of construction, and if such construction should take more than twelve months, then the said plaintiff and his associates should receive, in addition to the six per cent on the cost of construction $500 per month for each month over twelve months required to complete the project.
That in accordance with said contract, plaintiff proceeded with the work of making preliminary survey and report of same; this done it was decided by the mayor and commissioners that construction of the plant should proceed; and thereupon Ludlow Engineers, Inc., and Ludlow proceeded to Andrews, and in conjunction with the mayor and commissioners, prepared a new contract with Ludlow Engineers, Inc., and Ludlow, thereby breaching the contract made with Spinks; that this was done for the purpose of depriving plaintiff of his rights under the first named contract, under which plaintiff had done his part of the contract and was and has at all times been ready, able and willing to carry out every provision in the contract; but the mayor and commissioners, and Ludlow Engineers, Inc., and Ludlow, with the intent and purpose of depriving plaintiff of his rights in the contract and his fees arising thereunder, have proceeded with no reference to this plaintiff with the construction of said plant, and the mayor and commissioners have paid to Ludlow Engineers, Inc., and Ludlow, all the fees arising under the contract, as same have accrued, notwithstanding the fact that notice has been given them to hold and retain for plaintiff's benefit fifty per cent of all fees accruing by virtue of the construction of the plant, being six per cent on the cost of construction, being that portion of the fees that plaintiff is entitled to under the contract; that the cost of construction was not less than $300,000, and one-half of six per cent thereof, to which this plaintiff is entitled, amounts to $9,000, etc. *276
Plaintiff demanded judgment against the defendants and for general relief. The material allegations of the plaintiff were denied by defendants.
At the close of plaintiff's evidence the defendant, town of Andrews and its commissioners, officially and individually, made a motion for judgment as in case of nonsuit, which was sustained. A similar motion was made by Ludlow Engineers, Inc., and J. L. Ludlow, which was refused.
The issues submitted to the jury and their answers thereto, were as follows:
"1. Did the plaintiff, John D. Spinks, and the defendants, Ludlow Engineers, Inc., and J. L. Ludlow, enter into a contract with each other that the plaintiff and the said defendants would make a preliminary survey of the proposed hydro-electric power plant which the town of Andrews desired developed, and submit the same, together with an estimate of the cost of development of said hydro-electric plant, and supervise the construction of the same upon the terms and conditions set out in the complaint? Answer: Yes.
"2. Did the defendants, Ludlow Engineers, Inc., and J. L. Ludlow breach said contracts, as alleged in the complaint? Answer: Yes.
"3. What damage, if any, is plaintiff entitled to recover of the defendants, Ludlow Engineers, Inc., and J. L. Ludlow? Answer: $3,000."
Judgment was duly rendered on the verdict. The defendants, Ludlow Engineers, Inc., and J. L. Ludlow, assigned many errors and appealed to the Supreme Court.
Necessary material facts will be stated in the opinion. We think the main assignment of error of the defendants, Ludlow Engineers, Inc., and J. L. Ludlow, relates to the refusal of the court below to nonsuit the plaintiff at the close of all the evidence. The issues tendered by them are in support of this contention.
The complaint, although alleging a cause of action against the town of Andrews, by fair and reasonable interpretation, also alleges a cause of action against Ludlow Engineers, Inc., and J. L. Ludlow. When the town of Andrews went out of the action by nonsuit (see C. S., 28312960, certain restrictions upon municipal contracts), it did not necessarily carry the Ludlow Engineers, Inc., and J. L. Ludlow. We think, from a careful inspection of the record, that there was sufficient allegations in the complaint and evidence to support the issues tendered by the court below. *277
The charge of the court below is not in the record, the presumption of law is that it was correct, and the court charged the law in accordance with the evidence. The evidence of plaintiff tended to show that Ludlow Engineers, Inc., and J. L. Ludlow, its general manager, supplanted the plaintiff; that the plaintiff originated the business with the town of Andrews and took Ludlow Engineers, Inc., and J. L. Ludlow in with him.
J. D. Spinks testified: "I suggested to them in the conference (board of commissioners of town of Andrews) that Ludlow Engineers, Inc., and I would do this work jointly if they would join me in the enterprise; they were agreeable to it. I left next morning for Winston-Salem and went to see Mr. Ludlow as soon as I got back, and Mr. Justin, and discussed my visit to Andrews. We agreed to divide the profits and operating expenses equally; we agreed to go into this matter jointly and divide the profits, that is deduct the expenses, and divide the profits
The Ludlow Engineers, Inc., and J. L. Ludlow, defendants, denied any supplanting of Spinks, and alleged that the town of Andrews gave the contract to the Ludlow Engineers, Inc., and the plaintiff had no interest in it; that plaintiff was paid in full for preliminary survey.
The evidence introduced on both sides showed that the contest waged around the issues submitted. The pleadings, liberally construed with a view to substantial justice between the parties, permitted the issues submitted by the court. They embodied proper inquiries as to all essential matters or determinative facts of the controversy. The complaining defendants fully understood plaintiff's cause of action and were in no way misled. The case was tried upon its merits. No substantial rights of defendants were in any way affected by a liberal construction of the pleadings or the issues submitted.
It was said, in speaking to the question in Sewing Machine Co. v.Burger, 181 N.C. at p. 247: "One of the most important purposes of the adoption of The Code system of pleading was to enable parties to determine and settle their differences in one action. The law favors the ending of litigation, and frowns upon the multiplicity of suits."
The court below, under C. S., 547, had, under certain circumstances, a right to allow plaintiff to amend; so has this Court, under C. S., 1414, but we think, under the pleadings, liberally construed, it was not necessary. Jones v. Mial, 82 N.C. at p. 257; Ricks v. Brooks,
In this Court we cannot pass on the facts. We can only review decisions of the court below "upon any matter of law or legal inference." The jury below has found the issues in the plaintiff's favor. From a careful review of the record and the briefs, we can find in law
No error.