{
  "id": 8553706,
  "name": "GELDER & ASSOCIATES, INC. v. THE CONTINENTAL INSURANCE COMPANY and UNDERWRITERS ADJUSTING COMPANY",
  "name_abbreviation": "Gelder & Associates, Inc. v. Continental Insurance",
  "decision_date": "1972-08-23",
  "docket_number": "No. 7210SC218",
  "first_page": "686",
  "last_page": "689",
  "citations": [
    {
      "type": "official",
      "cite": "15 N.C. App. 686"
    }
  ],
  "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": "176 S.E. 2d 24",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "opinion_index": 0
    },
    {
      "cite": "9 N.C. App. 336",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550285
      ],
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/9/0336-01"
      ]
    }
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  "last_updated": "2023-07-14T17:26:51.335715+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Morris and Parker concur."
    ],
    "parties": [
      "GELDER & ASSOCIATES, INC. v. THE CONTINENTAL INSURANCE COMPANY and UNDERWRITERS ADJUSTING COMPANY"
    ],
    "opinions": [
      {
        "text": "MALLARD, Chief Judge.\nThe first question presented in defendant\u2019s brief is whether the trial judge erred in failing to instruct as to the first issue that \u201ctime was of the essence\u201d of the contract and in instructing the jury on the third issue as to \u201ctime being of the essence.\u201d\nThere was evidence introduced by the plaintiff, as well as the defendant, which tended to show that \u201ctime was of the essence\u201d of the contract between the parties. Plaintiff\u2019s evidence tended to show that Foster, prior to its financial difficulties, had entered into an agreement with plaintiff for the performance, at the bid price, of some of the miscellaneous concrete work on the Project. Foster was furnishing the materials. Prior to September 1970, plaintiff had performed some of this work and was paid on \u201ca week to week\u201d basis. In August 1970, plaintiff decided \u201cto leave the job\u201d due to the fact that it was losing money. Plaintiff\u2019s evidence also tended to show that it was only an \u201chour to hour\u201d employee of Foster. On 5 September 1970 plaintiff and Continental, pursuant to a telephone conversation between their agents, agreed that plaintiff would go back to work on the Project on the same payment basis it had with Foster, except that upon the completion of the Project, plaintiff was to be paid an additional sum of $7,500. It was also agreed as set out in a letter from Continental\u2019s agent to plaintiff that \u201c(i)t was understood that if you do not finish this concrete work as quickly as possible, or if for some reason within your control you do not complete the total work, then it is understood that you will not be paid any additional funds but will only be paid for those concrete items of work which you have performed.\u201d Also, plaintiff\u2019s witness Clarence Gelder also testified on cross-examination that \u201c(i)n my conversation with Mr. Wilson during September of 1970, it was apparent that he had a problem on his hands. He was in charge of completing this project, and they were under a penalty of $200 a day. Every day that lapsed was costing the Continental Insurance Company and Underwriters Adjusting Company a lot of money. The fact that he had no one doing the concrete work was of great concern to him and he did emphasize this point to me, that he needed to get the job moving. When we reached our agreement around September 5, 1970, I was aware that time was important in the contract. It was very important that the job be finished as soon as possible.\u201d\nDefendant Continental\u2019s evidence tended to show that plaintiff agreed to move its men back onto the job, expedite the job and finish it as quickly as possible, but that no definite date for finishing the work could be set because the State could add to the work under the terms of the Foster contract. Continental\u2019s witness testified that plaintiff and defendant \u201cagreed that time was of the essence in the job.\u201d Continental\u2019s evidence also tended to show that plaintiff\u2019s crew did not work on the job on some days that they could have worked, that the failure to expedite the concrete work delayed the progress of the work on the Project and that because of this failure, it was necessary to terminate the contract with plaintiff and secure somebody else to finish the concrete work.\nIn apt time, Continental submitted to the trial judge a request for special instruction to the jury regarding the legal effect of delay in the performance of a contract wherein time is of the essence. On the first issue, whether or not Continental breached the contract with plaintiff, no instructions were given with respect to the legal effect of evidence that time was of the essence of the contract or with respect to how the jury was to consider such evidence on the first issue. On the third issue the jury was instructed in general terms, without objection, as to the law about time being of the essence of a contract, and then in the final mandate the court said:\n\u201cSo members of the jury I instruct you that if from the evidence in this case and by its greater weight, that you should find that time was of the essence of the contract entered into between Gelder and Associates and Continental Insurance Company, and that Gelder and Associates did not perform its obligations under the contract within the time or at the speed contemplated by the parties, as set out in the contract, then Gelder and Associates would have breached its contract with Continental Insurance Company and it would be your duty to answer that issue \u2018no\u2019.\u201d\nThe vice in this instruction is that the jury was instructed that if they found that time was of the essence and if they found that plaintiff had not performed within the time or at the speed contemplated by the parties, then the plaintiff would have breached its contract and that they, the jury, should therefore answer the issue \u201cno.\u201d This issue submitted was: \u201cDid the plaintiff Gelder and Associates breach the contract between plaintiff Gelder and Associates, Inc., and defendant Continental Insurance Company?\u201d The jury was thus instructed that if the plaintiff had breached its contract because of time being of the essence, it should answer the issue \u201cNo\u201d and find that it had not. We think this, in addition to the fact that no mention was made in the instructions relating to the first issue about how the jury was to consider the evidence as to time being of the essence of the contract, tended to confuse the jurors, and was prejudicial error, entitling Continental to a new trial.\nG.S. 1A-1, Rule 51(a) requires the judge to declare and explain the law arising on the evidence in the case. Whether time was of the essence of the contract between the parties was a substantial feature of this case and the trial judge was required, without a request, to declare and explain the law with respect thereto. Turner v. Turner, 9 N.C. App. 336, 176 S.E. 2d 24 (1970).\nDefendant has other assignments of error to the charge of the court to the jury in this case and to the admission and exclusion of evidence, some of which have merit, but inasmuch as a new trial is being awarded and such alleged errors may not recur on a new trial, we do not deem it necessary to discuss them.\nNew trial.\nJudges Morris and Parker concur.",
        "type": "majority",
        "author": "MALLARD, Chief Judge."
      }
    ],
    "attorneys": [
      "Edgar B. Bain for plaintiff appellee.",
      "Teague, Johnson, Patterson, Dilthey & Clay by Robert M. Clay and Robert W. Sumner for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "GELDER & ASSOCIATES, INC. v. THE CONTINENTAL INSURANCE COMPANY and UNDERWRITERS ADJUSTING COMPANY\nNo. 7210SC218\n(Filed 23 August 1972)\nContracts \u00a7 28\u2014 declaration and explanation of law to jury\u2014 request for special instructions unnecessary\nWhether time was of the essence of the contract between the parties was a substantial feature of the case in an action for damages for breach of contract and the trial judge was required, without a request, to declare and explain the law with respect thereto; hence, the judge\u2019s failure to instruct as to time being of the essence on one of the issues and his confusing instruction as to time being of the essence on another issue constituted prejudicial error.\nAppeal by defendant Continental Insurance Company from Brewer, Judge, 1 October 1971 Civil Session of Superior Court held in Wake County.\nAction to recover damages alleged to have been sustained by plaintiff as a result of breach of contract. Plaintiff alleged that it was a subcontractor under R. G. Foster & Company (Foster) engaged to perform miscellaneous concrete work under the plans and specifications of the North Carolina Highway Commission (Commission) on its N. C. State Highway Project No. 8.118-2702 (Project). Foster had been the successful bidder for the Project and had subcontracted to plaintiff on \u201ca day to day\u201d or \u201cweek to week\u201d basis for the installation of some concrete ditches, curbing and other miscellaneous concrete work on N. C. Highway No. 11 North of Kinston which was a part of the Project. Plaintiff was to be paid for the work it actually performed at the same rate Foster had bid. The defendant, The Continental Insurance Company (Continental), had sold and issued its performance bond regarding the performance of Foster on the Project. During the year 1969, Foster encountered financial difficulties, and it became necessary for Continental to undertake the completion of the Project in accordance with its bond. Continental, through its agent, Underwriters Adjusting Company, then contracted with plaintiff for the construction of the concrete ditches and curbing, and it was alleged that Continental breached its contract with plaintiff and that on account thereof, plaintiff was entitled to recover of Continental the sum of $11,915.25.\nContinental denied that it had breached a contract with plaintiff and also filed a counterclaim against the plaintiff for a breach of contract, alleging that it was entitled to recover of the plaintiff on account thereof the sum of $36,496.53.\nAt the close of plaintiff\u2019s evidence, the defendants\u2019 motion for a directed verdict as to Underwriters. Adjusting Company was allowed, without exception, and it is not a party to this appeal.\nThe jury answered the issues in favor of the plaintiff, and Continental appealed, assigning error.\nEdgar B. Bain for plaintiff appellee.\nTeague, Johnson, Patterson, Dilthey & Clay by Robert M. Clay and Robert W. Sumner for defendant appellant."
  },
  "file_name": "0686-01",
  "first_page_order": 710,
  "last_page_order": 713
}