Brokers, Inc. v. HIGH POINT CITY BD. OF ED.

234 S.E.2d 56 (1977)

33 N.C. App. 24

BROKERS, INC. v. HIGH POINT CITY BOARD OF EDUCATION.

No. 7618SC700.

Court of Appeals of North Carolina.

April 20, 1977.

Certiorari Denied July 14, 1977.

*59 Stephen E. Lawing, High Point, for plaintiff appellant.

D. P. Whitley, Jr., and Hugh C. Bennett, Jr., High Point, for defendant appellee.

Certiorari Denied by Supreme Court July 14, 1977.

PARKER, Judge.

The only question presented is whether the trial court erred in granting judgment for defendant notwithstanding the verdict returned by the jury for plaintiff. We find no error.

When passing on a motion for judgment notwithstanding the verdict, the same standards applicable to a motion for directed verdict are to be applied. Thus, the court must consider the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to support a verdict for plaintiff. Hargett v. Air Service and Lewis v. Air Service, 23 N.C. App. 636, 209 S.E.2d 518 (1974).

The evidence in the present case, when viewed in the light most favorable to the plaintiff, shows the following: Pursuant to a set of plans and specifications prepared by defendant's architect, plaintiff submitted the low bid on 16 January 1973 on a grading and storm drainage project for a new road to be built in High Point. Three days thereafter the parties executed a standard from contract for this job. While performing the undercut excavations specified by the contract, plaintiff began experiencing extremely miry subsoil conditions not apparent on the surface of the land. Because plaintiff's heavy equipment could not move over such terrain, plaintiff submitted two requests for Change Orders for defendant's consideration pursuant to Article 22 of the contract which provides:

"ARTICLE 22 CHANGES IN THE WORK 22.1 The Owner without invalidating the Contract may order Changes in the Work consisting of additions, deletions, or modifications, the Contract Sum and the Contract Time being adjusted accordingly. All such Changes in the Work shall be authorized by written Change Order signed by the Owner or the Architect as his duly authorized agent. *60 22.2 The Contract Sum and the Contract Time may be changed only by Change Order."

By these requests, plaintiff sought permission to undercut an additional six feet and to install a French drain after making the additional excavation; both requests for Change Orders were denied by defendant. Finding that the job could not be finished unless the water was drained from the area, plaintiff proposed another Change Order for the installation of a French drain. Plaintiff was notified verbally by defendant's architect to proceed on the work requested, which plaintiff did. However, in installing the French drain plaintiff excavated from 6 feet to 12 feet more than the specifications called for. After most of this portion of the work was completed, defendant sent plaintiff written approval of its Change Order request to install the French drain at an addition of $10,502.00 to the contract price. A little over a month later, plaintiff requested an additional $29,700.00 for the extra excavation work, which request defendant denied. After the parties agreed to waive Article 15 of the Contract, which provides that "[a]ll claims or disputes arising out of this Contract or the breach thereof shall be decided by arbitration," plaintiff finished the project and then brought this action seeking compensation for the extra work.

We affirm the trial court's action in granting defendant's motion for judgment n.o.v. Where the language of a contract is plain and unambiguous the court rather than the jury will declare its meaning. Yates v. Brown, 275 N.C. 634, 170 S.E.2d 477 (1969). Article 22 of the written contract specifically states that all "Changes in the Work shall be authorized by a written Change Order signed by the Owner or the Architect as his duly authorized agent," and that "[t]he Contract Sum and the Contract Time may be changed only by Change Order." All of the evidence shows that the only written Change Order issued in this case was the one which authorized installation of the French drain and which increased the contract price by $10,502.00. Plaintiff's contention that the owner should be bound to pay the contractor the additional cost for the excavation in excess of the contract specifications, absent a Change Order issued in the manner and as authorized in the contract between owner and contractor, is untenable. See Electric Co. v. Newspapers, Inc., 22 N.C.App. 519, 207 S.E.2d 323 (1974). Neither can we agree with plaintiffs argument that "[s]uch extra work was performed at the `express or implied request' of the defendant," and therefore plaintiff should be entitled to recover on the basis of quantum meruit or an implied contract. "It is a well established principle that an express contract precludes an implied contract with reference to the same matter."Concrete Co. v. Lumber Co., 256 N.C. 709, 713, 124 S.E.2d 905, 908 (1962). "There cannot be an express and an implied contract for the same thing existing at the same time. It is only when parties do not expressly agree that the law interposes and raises a promise. No agreement can be implied where there is an express one existing." 66 Am.Jur.2nd, Restitution and Implied Contracts, § 6, pp. 948, 949. Campbell v. Blount, 24 N.C.App. 368, 210 S.E.2d 513 (1975), is distinguishable. In Campbell there was evidence that, while the work was in progress, the parties failed to adhere to the provisions in their written contract relative to desired changes in construction, thereby abandoning those provisions. Here, not only were the provisions relative to the changes in the construction project adhered to while work was in progress, but authorization to perform the very work for which plaintiff now seeks recovery was expressly denied to plaintiff by defendant's rejection of plaintiff's requests for Change Orders on two separate occasions.

That plaintiff encountered difficulties which it failed to anticipate when making its bid did not entitle it to the increased compensation it now seeks to recover. All bidders were notified that the area involved was "new fill over old lake bottom," and all were instructed to inspect the site before submitting their bids. The hazard encountered, subsurface soil conditions on which it was difficult to employ heavy equipment, *61 was the type of risk which any bidder should have known he would be called upon to assume if his bid should be accepted. Moreover, that in plaintiff's judgment it was necessary for plaintiff to excavate deeper than called for in the specifications in order to complete its contract did not justify plaintiff in performing the excess excavation at defendant's expense. The proper depth of the cut to be made was an engineering decision, which defendant employed the architect to make. In excavating deeper than the architect's specifications provided, plaintiff simply performed work in excess of that called for in its written contract and which defendant not only did not request plaintiff to perform but which it twice notified plaintiff it would not authorize plaintiff to perform. Defendant is not liable for the unauthorized extra work for which plaintiff seeks to be compensated.

The judgment appealed from is

Affirmed.

MARTIN and ARNOLD, JJ., concur.