{ "id": 8575593, "name": "W. F. PHILLIPS, C. C. PHILLIPS, and B. M. HAGLER, JR., Partners t/a P & H PLASTERING COMPANY, Plaintiffs v. PHILLIPS CONSTRUCTION COMPANY, INC., Defendant", "name_abbreviation": "Phillips v. Phillips Construction Co.", "decision_date": "1964-05-06", "docket_number": "", "first_page": "767", "last_page": "772", "citations": [ { "type": "official", "cite": "261 N.C. 767" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "2 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631119 ], "opinion_index": 0, "case_paths": [ "/nc/215/0628-01" ] }, { "cite": "143 S.E. 471", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631592 ], "opinion_index": 0, "case_paths": [ "/nc/195/0702-01" ] }, { "cite": "155 S.E. 856", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615149 ], "opinion_index": 0, "case_paths": [ "/nc/199/0759-01" ] }, { "cite": "75 S.E. 2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617216 ], "opinion_index": 0, "case_paths": [ "/nc/237/0644-01" ] }, { "cite": "111 S.E. 2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626814 ], "opinion_index": 0, "case_paths": [ "/nc/251/0642-01" ] } ], "analysis": { "cardinality": 598, "char_count": 11768, "ocr_confidence": 0.561, "pagerank": { "raw": 1.6637811129166922e-07, "percentile": 0.6948609745201361 }, "sha256": "3be1a0fba4fc7384b6ac81e7e8b90a7ec1e86ae4111371766535bbf4f3bd3a70", "simhash": "1:c4813e83f5d9fb12", "word_count": 1871 }, "last_updated": "2023-07-14T21:53:45.776989+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. F. PHILLIPS, C. C. PHILLIPS, and B. M. HAGLER, JR., Partners t/a P & H PLASTERING COMPANY, Plaintiffs v. PHILLIPS CONSTRUCTION COMPANY, INC., Defendant." ], "opinions": [ { "text": "Sharp, J.\nUpon the trial these facts were undisputed:\nOn October 2, 1957 the defendant, as general contractor, entered into a contract with the United States Government through the Department of the Air Force (Department) to construct eight hundred housing units at Myrtle Beach Air Force Base in South Carolina. On October 15, 1957 defendant and the plaintiffs, a partnership doing business as P & H Plastering Company, executed \u201can agreement between contractor and sub-contractor,\u201d whereby plaintiffs agreed to furnish all materials and perform all work described in the plastering and lathing specifications in defendant\u2019s contract with defendant and the Department for a total price of $602,750.00. Insofar as applicable to this subcontract, the plaintiffs and defendant agreed to be bound by the general provisions of defendant\u2019s contract with the Department and to assume inter sese the same rights and liabilities it fixed for those parties.\nThe provisions of the lathing and plastering specifications pertinent to this action follow with our enumeration:\n(a) \u201cAll items required for a complete and first class installation shall be included whether particularly mentioned or not.\n(b) \u201cAll operations connected with the lath and plastering shall be of a standard that will insure flat, true surfaces free of waves, edges that are straight for their entire length, corners that are straight and true, and accurate vertical and horizontal lines and planes.\n(c) \u201cAll metal lath shall be installed in accordance with the standard established by \u2018Specifications for Metal and Furring,\u2019 1950 edition, as published by the Metal Lath Manufacturer\u2019s Association, Cleveland 14, Ohio.\n(d) \u201cCornerites for all interior vertical corners shall be reinforced with metal cornerites as manufactured by U. S. Gypsum Company, or equal.\u201d\nIncluded in paragraph 2(c) of the general provisions of the contract between defendant and the Department was this stipulation:\n\u201cOmissions from the Drawings or Specifications or misdescription of detail of work which are manifestly necessary to carry out the intent of the Drawings and Specifications, or which are customarily performed, shall not relieve the eligible builder from performing such omitted or misdescribed details of work but they shall be performed as if fully and correctly set forth and described in the Drawings and Specifications.\u201d\nThe controversy involved in this action arises out of specification (d) above which refers only to cornerites for interior vertical corners. The cornerite referred to is a 3\"x3\" metal diamond mesh lath angle. It is placed on the plaster base in the corners formed where wall and wall and ceiling abut. Its purpose is to re-inforce the corner and to minimize corner cracks in the plastering. Vertical cornerites are placed in the angle created where two walls adjoin; horizontal cornerites are used where a wall meets the ceiling.\nOriginally it was contemplated that only the ceilings would be plastered and that the walls in the houses would be of wallboard. In that event, cornerite would not have been used in the horizontal angles. However, the base bid contained plastered walls as an alternative plastering specification. In making their bid for the job, plaintiffs included the cost of vertical cornerites only. However, in computing the amount of their bid, plaintiffs referred to the 1950 edition of \u201cSpecifications for Metal & Furring\u201d of the Metal Lath Manufacturer\u2019s Association mentioned in specification (c) above. This publication required the installation of cornerite at all horizontal and vertical angles. The North Carolina Building Code, which establishes minimum standards of construction likewise requires both, as do FHA regulations. During the construction of the first house, the government inspector informed plaintiffs that he would not approve their work unless they installed both vertical and horizontal cornerites; whereupon plaintiffs installed both at an additional cost of $18,250.00.\nW. F. Phillips, one of the plaintiffs and a partner -in the P & H Plastering Company, testified that approximately two weeks later he informed Dwight Phillips, president of the defendant corporation, of the inspector\u2019s requirement. The president told him to go ahead, that defendant would see that plaintiffs were paid for it. Dwight Phillips denied that he made this promise. His version was that he told Mr. Phillips he would present his claim to the Department by a \u201cchange order\u201d and send it through \u201cproper channels,\u201d and that defendant made no commitment to plaintiffs \u201cexcept to the extent that money was recovered from the Air Force.\u201d This discrepancy is the only real conflict in the evidence in the case.\nIn May 1958 defendant wrote the project supervisor with reference to plaintiff\u2019s claim and he also sent a \u201cchange-order request\u201d to the contracting office for additional compensation for the horizontal cor-nerite since no specific mention of it had been made in the specifications. Both replied immediately. The contracting office said that horizontal cornerites come within paragraph (a) of the specifications quoted above. The supervisor pointed out that while the base bid provided for sheetrock walls with crown mold, the alternate specification of plastered walls was employed. Therefore, good construction practices required the use of horizontal cornerites in order to avoid cracks. Defendant offered the evidence of three witnesses, found to be experts in the plastering and construction trade, that where both the walls and ceilings of a dwelling are plastered, it is the general practice to install both vertical and horizontal cornerites, and that a first-class installation requires cornerites in all interior angles whether specifically mentioned or not.\nMr. W. F. Phillips himself testified:\n\u201cThe purpose of installing cornerites at the vertical angles which is a corner between two walls is to eliminate cracks and it would be just as important to install them at the intersection of the ceiling and the wall if a person wanted it.\u201d\nPlaintiffs filed no written claim with either defendant or the Department until May 20, 1959 when plaintiff W. F. Phillips signed a letter to the contracting officer, prepared for plaintiffs by defendant, in which they demanded the sum of $18,319.52. The Air Force denied the \u201cchange-order requests\" and no payment of any kind was made in connection with them. Plaintiffs made no request to defendant to appeal this denial to the Contract Board of Appeals in Washington, D. C.\nPlaintiffs finished their work in November 1959. On July 7, 1960 defendant\u2019s president called B. M. Hagler, Jr., one of the plaintiff partners, and told him to come for \u201cthe final check.\u201d This check was made payable to the plaintiff in the amount of $3,451.89. On the back of the check, above the line for endorsement, was the following statement:\n\u201cThe payee by endorsement hereon acknowledges receipt of this final payment in the amount of $3,451.89 as full payment and complete settlement for all work performed under subcontract dated October 15, 1957, with Phillips Construction Co., Inc., and/ or D. L. Phillips, Builder, and/or Myrtle Beach AFB Housing, Inc., and/or No. 2 and 3 and claims for any and all work performed in addition to subject subcontract at the Myrtle Beach AFB Housing Projects.\u201d\nBeneath this statement W. F. Phillips endorsed the check by first signing the partnership\u2019s trade name and then his own. The plaintiffs received the money and executed lien waivers stating that all sums due under the subcontract had been paid.\nTo state the facts is to decide this case. The contract, prepared and executed by experts in the building industry, is free from ambiguity. It was, therefore, for the court to interpret and declare its meaning in the light of the undisputed evidence as to the custom, usage, and meaning of its terms in the plastering trade. Briggs v. Mills, Inc., 251 N.C. 642, 111 S.E. 2d 841; Young v. Mica Co., 237 N.C. 644, 75 S.E. 2d 795; Wallace v. Bellamy, 199 N.C. 759, 155 S.E. 856. Ordinarily, the court will interpret words used in a contract with reference to a particular trade according to their widely accepted trade meaning. 12 Am. Jur. Contracts \u00a7 237.\nWhen the Department exercised its alternative election to use plastered walls in the housing project instead of sheetrock, the plaintiffs were still required to furnish all items necessary for first class construction whether particularly mentioned or not. The only inference to be drawn from all the evidence in this case is that, for the construction involved here, horizontal comentes were thus required. However, be that as it may, when plaintiffs accepted and cashed defendant\u2019s \u201cfinal check\u201d which stated that it was in full payment and final settlement, not only for all work under the subcontract, but for all claims for any additional work, plaintiffs discharged their claim for any additional compensation. \u201cIt is well recognized that when, in case of a disputed account between parties, a check is given and received clearly purporting to be in full or when such check is given and from the facts and attendant circumstances it clearly appears that it is to be received in full of all indebtedness of a given character or all indebtedness to date, the courts will allow to such a payment the effect contended for.\u201d Hardware Company v. Farmers Federation, 195 N.C. 702, 143 S.E. 471; Durant v. Powell, 215 N.C. 628, 2 S.E. 2d 884.\nThe judgment of the court below is\nAffirmed.", "type": "majority", "author": "Sharp, J." } ], "attorneys": [ "Fairley, Hamrick, Hamilton & Monteith for plaintiff.", "Fleming, Robinson \u25a0& Bradshaw for defendant." ], "corrections": "", "head_matter": "W. F. PHILLIPS, C. C. PHILLIPS, and B. M. HAGLER, JR., Partners t/a P & H PLASTERING COMPANY, Plaintiffs v. PHILLIPS CONSTRUCTION COMPANY, INC., Defendant.\n(Filed 6 May, 1964.)\n1. Contracts \u00a7 12\u2014\nWhere the language in a contract is clear and unambiguous, it is the function of the court to declare its meaning in the light of the undisputed evidence as to the custom, usage, and meaning of its terms.\n2. Same; Customs and Usages\u2014\nWords of a contract referring to a particular trade will be interpreted by the courts according to their widely accepted trade meaning.\n.3. Same\u2014\nWhere the contract under which defendants plastered the houses in question stipulated that defendants should perform all items required for a complete and first-class job whether particularly mentioned or not, and the particular specifications call for cornerites only for vertical corners, it is held,, upon final agreement requiring the plastering of walls as well as ceilings, defendants were required to reinforce all wall corners with corner-ites upon evidence disclosing that in the trade cornerites are standard for both vertical and horizontal corners when apposite.\n4. Compromise and Settlement\u2014\nWhere a check states that it is in full payment for the balance due under the contract, including claims for all work performed in addition to the subject contract, acceptance of the check constitutes a settlement excluding claim for additional compensation for work beyond that called for in the original agreement.\nAppeal by plaintiff from Campbell, J., October 21, 1963 Regular Schedule \u201cA\u201d Civil Session of MecsleNburg.\nIn this action plaintiffs seek to recover $18,000.00 for installing horizontal comentes in housing units constructed by defendant for the United States Government in South Carolina. They allege that these installations were not included in the original specifications and contract price and that defendant had agreed to pay them for these extras. Defendant denied any such agreement and pleaded an accord and satisfaction. At the close of all the evidence, defendant\u2019s motion for judgment as of nonsuit was allowed and plaintiffs appealed.\nFairley, Hamrick, Hamilton & Monteith for plaintiff.\nFleming, Robinson \u25a0& Bradshaw for defendant." }, "file_name": "0767-01", "first_page_order": 807, "last_page_order": 812 }