Windfield Corp. v. McCallum Inspection Co.

196 S.E.2d 607 (1973)

18 N.C. App. 168

The WINDFIELD CORPORATION v. McCALLUM INSPECTION COMPANY.

No. 731SC160.

Court of Appeals of North Carolina.

May 23, 1973.

*610 Leroy, Wells, Shaw, Hornthal & Riley by J. Fred Riley, Elizabeth City, for plaintiff appellee.

J. Kenyon Wilson, Jr., Elizabeth City, for defendant appellant.

BRITT, Judge.

Basic to a determination of this case is a construction of the contract set out above and particularly that provision of the contract with reference to "11,800 feet of 4" plastic P.V.C. rigid pipe." Defendant contends that the contract is "clear and unambiguous as to the Installation or Laying of the plastic pipe" since "the contract is silent on this point." Plaintiff argues that the written contract is ambiguous with respect to defendant's responsibility for installing the pipe. We think the contract on this point is vague and therefore necessitated interpretation by the court.

If contract terms are ambiguous, extrinsic evidence relating to the agreement may be competent to clarify its terms. Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962); Owens v. Little, 13 N.C.App. 484, 186 S.E.2d 182 (1972); 2 Strong's N.C. Index 2d, Contracts, § 12, p. 312. Extrinsic evidence tended to show *611 that defendant was responsible for digging the ditch in which to lay the pipe; that defendant arranged with subcontractors for the pipe installation and assumed responsibility for at least a part of the leakage repair work. Plaintiff introduced testimony tending to establish that at the time the pipe was bought it had a sales price of 65 or 70 cents per foot (not more than $8,260 for 11,800 feet) while defendant's evidence tended to establish the cost of the pipe at $1.89 per foot.

It is well recognized that in a nonjury trial the findings by the court have the force and effect of a jury verdict and are conclusive on appeal if supported by any competent evidence notwithstanding that there is evidence which would sustain findings to the contrary. Mayo v. Casualty Co., 282 N.C. 346, 192 S.E.2d 828 (1972); Vaughn v. Tyson, 14 N.C.App. 548, 188 S.E.2d 614 (1972). After considering all of the evidence the able trial judge found that defendant contracted to furnish and install the plastic pipe and this finding being amply supported by the evidence is conclusive on appeal.

Further, it is undisputed that the controverted part of the contract was prepared by defendant. Well recognized in the law of contract construction is the principle that an ambiguity in a written contract is to be construed against the party who prepared the instrument. Yates v. Brown, 275 N.C. 634, 170 S.E.2d 477 (1969); Koppers Co., Inc. v. Chemical Corp., 9 N.C.App. 118, 175 S.E.2d 761 (1970). We hold that the trial court did not err in concluding that the contract between plaintiff and defendant obligated defendant to furnish and install the pipe for the water system.

Appellant next contends that the judge erred in awarding special damages as compensation for repair bills incurred by plaintiff. This contention has merit.

In Paragraph V of the complaint as amended, plaintiff alleged that the value of the water system for which it contracted was $33,970.32 and that the value of the system actually installed was $4,334.92. In Paragraph VI, plaintiff alleged that as a direct result of defendant's breach of contract, plaintiff sustained special damages due to its inability to sell to the public lots complete with usable water systems; that said losses were reasonably foreseeable by defendant. In Paragraph VII, plaintiff alleged that it had sustained damages totalling $50,000.00. In its prayer for relief, plaintiff asked for judgment against defendant in the sum of $50,000 plus costs.

In Oberholtzer v. Huffman, 234 N.C. 399, 400, 67 S.E.2d 263 (1951), we find: "Special damages, that is, damages which are the natural but not necessary result of the alleged wrongful act of the defendant, must be pleaded with sufficient particularity to put the defendant on notice. Conrad v. Shuford, 174 N.C. 719, 94 S.E. 424; Binder v. Acceptance Corp., 222 N.C. 512, 23 S.E.2d 894." See also Perkins v. Insurance Company, 274 N.C. 134, 161 S.E.2d 536 (1968).

We think the $4,409.63 which plaintiff allegedly spent in its efforts to repair the water system comes within the category of special damages which must be specifically pleaded. This was not done. The record discloses that on 15 May 1972, plaintiff filed a motion pursuant to Rule 15(b) of the Rules of Civil Procedure to amend its complaint to specifically allege this item but the record fails to disclose that the motion was ever allowed. Plaintiff argues that the court by including an award of $4,409.63 in its judgment inferentially allowed the motion to amend; we are unable to accept this argument.

We have considered the other assignments of error brought forward and argued in defendant's brief but find them to be without merit.

Our decision is that the judgment awarding general damages in the net amount of $22,635.40, plus interest and costs of the action, and dismissing defendant's counterclaim, *612 is affirmed; but that portion of the judgment awarding special damages in the amount of $4,409.63 is vacated.

Modified and affirmed.

BROCK and HEDRICK, JJ., concur.