{
  "id": 8552213,
  "name": "HUGH B. FULTON v. ROBERT W. RICE",
  "name_abbreviation": "Fulton v. Rice",
  "decision_date": "1971-11-17",
  "docket_number": "No. 7130DC692",
  "first_page": "669",
  "last_page": "672",
  "citations": [
    {
      "type": "official",
      "cite": "12 N.C. App. 669"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "144 S.E. 2d 277",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1965,
      "opinion_index": 0
    },
    {
      "cite": "265 N.C. 413",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8575540
      ],
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/nc/265/0413-01"
      ]
    },
    {
      "cite": "177 S.E. 2d 273",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "pin_cites": [
        {
          "parenthetical": "citing cases"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "277 N.C. 119",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563328
      ],
      "year": 1970,
      "pin_cites": [
        {
          "parenthetical": "citing cases"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/277/0119-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 417,
    "char_count": 8013,
    "ocr_confidence": 0.579,
    "pagerank": {
      "raw": 2.913585852712547e-07,
      "percentile": 0.845991986405385
    },
    "sha256": "9450c4555d2c6393d86db3246f58272e47c64a929ce37bfbaa14a0f10fea7bd7",
    "simhash": "1:3961497b499cad6e",
    "word_count": 1297
  },
  "last_updated": "2023-07-14T18:50:27.087613+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Morris and Parker concur."
    ],
    "parties": [
      "HUGH B. FULTON v. ROBERT W. RICE"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nThe sole question raised on appeal is whether the defendant by entering into the instant contract became a general contractor within the meaning of G.S. 87-1 and was thus barred from recovery on his counterclaim because of his failure to have the license required by Chapter 87 of the General Statutes.\nThe statute in effect at the time of the institution of this suit defined a \u201cgeneral contractor\u201d as\n\u201c . . . one who for a fixed price, commission, fee or wage, undertakes to bid upon or to construct any building, highway, sewer main, grading or any improvement or structure where the cost of the undertaking is twenty thousand dollars ($20,000.00) or more and anyone who shall bid upon or engage in constructing any undertaking or improvements above mentioned in the State of North Carolina costing twenty thousand dollars ($20,000.00) or more shall be deemed and held to have engaged in the business of general contracting in the State of North Carolina.\n\u201cThis section shall not apply to persons or firms or corporations furnishing or erecting industrial equipment, power plant equipment, radial brick, chimneys, and monuments.\u201d\nThe plaintiff contends that in determining whether a contractor is a general contractor within the meaning of G.S. 87-1, the court must look to the owner\u2019s total cost of the structure. If it exceeds the statutory amount, the contractor is a general contractor.\nThe defendant contends that the cost of the contractor\u2019s undertaking is determinative. This would, in most cases, be the contract price-or the amount paid the contractor.\nCertain principles of construction must be applied in arriving at a decision in this case. The statute before us imposes criminal penalties for its violation. G.S. 87-13. It must be strictly construed and its scope may not be extended by implication beyond the meaning of its language so as to include offenses not clearly described. Vogel v. Supply Co. and Supply Co. v. Developers, Inc., 277 N.C. 119, 177 S.E. 2d 273 (1970) (citing cases). It is also a statute restricting the practice of an otherwise lawful occupation to a special class of persons and as such it must be construed so as not to extend it to activities and transactions not intended by the legislature to be included. McArver v. Gerukos, 265 N.C. 413, 144 S.E. 2d 277 (1965).\nThe statute defines a general contractor as \u201cone who . . . undertakes to bid upon or construct any building ... or structure where the cost of the undertaking is twenty thousand dollars ($20,000.00) or more . \u201d (emphasis added). These words must be construed strictly in favor of the defendant because the statute carries criminal penalties and is in derogation of the right to engage in a lawful occupation. Vogel v. Supply Co. and Supply Co. v. Developers, Inc., supra. The contractor is a general contractor if the cost of the undertaking exceeds $20,000.00. It is clear that the cost of the undertaking is determinative.\nAn undertaking is defined as, \u201c[a]n engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other.\u201d Black\u2019s Law Dictionary, Rev. 4th Edition (1968).\nThe undertaking is the promise or engagement. The cost of the undertaking is therefore the cost of the promise or engagement. The contract price and the total cost of the building are frequently, if not usually, the same. But where this is not the case, to allow the owner\u2019s total cost of the building to be determinative, would leave the contractor at the mercy of the owner. In such a situation the contractor would have no control over the purchase of materials or other expenses which the owner might incur and no way of insuring that he did not exceed the statutory cost limitation and thus fall within the definition of a general contractor.\nIn the case before this Court, the cost of the contractor\u2019s undertaking was less than $20,000.00. He was not within the definition of \u201cgeneral contractor\u201d in G.S. 87-1 and therefore his counterclaim against plaintiff was not barred as a matter of law. The plaintiff\u2019s motion should have been denied.\nReversed.\nJudges Morris and Parker concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Millar, Alley and Killian by Leon M. Killian III for plaintiff appellee.",
      "Morgan, Ward and Brown by H. S. Ward, Jr., for defendant appella/nt."
    ],
    "corrections": "",
    "head_matter": "HUGH B. FULTON v. ROBERT W. RICE\nNo. 7130DC692\n(Filed 17 November 1971)\n1. Contracts \u00a7 6\u2014 contractors\u2019 licensing statute \u2014 what constitutes a general contractor \u2014 \u201ccost of undertaking\u201d defined\nIn determining whether a contractor who undertakes to build a house is a \u201cgeneral contractor\u201d within the meaning of G.S. 87-1, which provides that a person is a general contractor if the cost of the undertaking is $20,000 or more, the term \u201ccost of undertaking\u201d is construed as the contractor\u2019s contract price, not the total cost of the building.\n2. Contracts \u00a7 6\u2014 unlicensed contractor \u2014 right to maintain counterclaim against homeowner\nAn unlicensed contractor whose contract price to erect a house was less than $20,000 is not barred from maintaining a counterclaim against the homeowner for the balance due on the contract, notwithstanding the homeowner\u2019s obligations to third parties raised the total cost of the home to more than $20,000.\n3. Statutes \u00a7 10\u2014 construction of criminal statute\nA statute which imposes criminal penalties for its violation must be strictly construed.\n4. Statutes \u00a7 5\u2014 statutory restriction of occupation\nA statute restricting the practice of an otherwise lawful occupation to a special class of persons must be construed so as not to extend it to activities and transactions not intended by the legislature to be included.\nAppeal by defendant from Leatherwood, District Judge, 26 May 1971 Session of District Court held in Jackson . County.\nThe plaintiff is the owner of an interest in land located in Jackson County, North Carolina. On 29 August 1968 the plaintiff entered into a written contract with defendant for the erection of a pre-cut log cabin on plaintiff\u2019s property. The plaintiff was to provide all materials, including the structure but excluding miscellaneous materials. The defendant was to provide and supervise the labor required to erect the structure plus miscellaneous materials. He was to be paid the cost of the labor and miscellaneous materials plus ten per cent.\nDefendant\u2019s original estimate for the cost of his services was less than $15,000.00. At the time of this appeal the defendant claims to be entitled to a total of $12,698.67 of which plaintiff has paid $11,189.07. The balance claimed by defendant is $1,590.60. The plaintiff incurred additional expenses with third parties in the amount of $9,170.12 for building materials and supplies, transportation of the supplies to the construction site, and engineering and site preparation. The total cost of the building to the plaintiff was $21,868.79. The defendant was not licensed as a \u201cgeneral contractor\u201d under G.S. 87-1 at the time the contract was entered and the work performed.\nOn September 5, 1969, plaintiff filed suit against the defendant alleging that defendant had breached the contract through faulty workmanship and that as a result the plaintiff has been damaged in the amount of $5,000.00. The defendant answered and counterclaimed for $1,590.60, the balance alleged to be due the defendant under the contract.\nOn April 21, 1971, plaintiff moved for dismissal of defendant\u2019s counterclaim alleging that defendant acted as a general contractor by undertaking to construct a building costing $20,000.00 or more; that defendant was not licensed as required by G.S. 87-1; and that an unlicensed contractor was barred from recovery where he undertook construction costing $20,000.00 or more in violation of G.S. 87-13. Matters outside the pleading were presented. The trial court found no material issue of fact and, treating plaintiff\u2019s motion as one for summary judgment, entered judgment dated 26 May 1971 dismissing defendant\u2019s counterclaim.\nFrom this judgment, the defendant appeals.\nMillar, Alley and Killian by Leon M. Killian III for plaintiff appellee.\nMorgan, Ward and Brown by H. S. Ward, Jr., for defendant appella/nt."
  },
  "file_name": "0669-01",
  "first_page_order": 695,
  "last_page_order": 698
}