MAC CONSTRUCTION CO. v. Thrasher Contracting Co.

Annotate this Case

162 S.E.2d 152 (1968)

1 N.C. App. 535

MAC CONSTRUCTION COMPANY, Inc. v. THRASHER CONTRACTING COMPANY.

No. 68SC91.

Court of Appeals of North Carolina.

July 10, 1968.

*153 Herring, Walton, Parker & Powell, by Ray H. Walton, Southport, for plaintiff appellant.

Taylor, Allen, Warren & Kerr, by W. F. Taylor, Goldsboro, for defendant appellee.

CAMPBELL, Judge.

The plaintiff takes the position that it would be prohibitive cost-wise and impractical for it to be confined to clearing only the bed of the old canal and the ten foot shoulder; that this work would entail mostly hand work, the removal of the debris from the ten foot shoulder across the canal bed, and the debris out of the canal bed up and across and to the outer edge of the fifty foot shoulder. Very little of this work could be done by machinery because of the terrain and location; whereas, all of the clearing on the fifty foot shoulder could be done by machinery and at a much cheaper cost per acre. The plaintiff contends that the parties contemplated by their contract a division of the work whereby the plaintiff would commence work "at station 605+48" but would proceed from that point for such distance as might be designated, but from and to the outside boundaries of the right of way, thereby giving the plaintiff not only the ten foot shoulder and the canal bed but also an equal proportion of the fifty foot shoulder. The defendant, on the other hand, contends that no such provision was made in the *154 contract and that the contract itself provided: "The exact location of such clearing shall be such as is pointed out to the `sub-contractor' herein by the `contractor.'"

Mr. McLamb, president of the plaintiff testified: "Yes, but I didn't expect him to divide it no such a way as he divided it."

The plaintiff tendered evidence to show the relative costs of clearing the various types of terrain involved which ranged from $500 per acre for the ten foot shoulder and the bed of the old canal to $75 per acre for the fifty foot shoulder of the right of way. The trial court refused to permit this testimony and at the conclusion of the plaintiff's evidence entered a judgment of nonsuit.

"Persons sui juris have a right to make any contract not contrary to law or public policy." Fulcher v. Nelson, 273 N. C. 221, 159 S.E.2d 519.

In the instant case the contract was in writing and both the plaintiff and the defendant were competent to enter into the contract into which they did enter, and if plaintiff expected a different division of work, plaintiff should have had it inserted in the contract. The court can only interpret a contract and cannot make a new contract for the parties. The words of the contract are clear and "(t)he exact location of such clearing shall be such as is pointed out to the `sub-contractor' herein by the `contractor'" leaves no room for interpretation or doubt as to the meaning thereof. The defendant had the right to point out where the clearing should be performed by the plaintiff and did so. The fact that this may have been improvident or impractical to perform from a cost standpoint was a matter that should have been contemplated by the plaintiff and its president, an experienced grading contractor.

In the trial, we find

No error.

BRITT and MORRIS, JJ., concur.