Shipplett Concrete Co. v. Piedmont Traction Co.

Clark, C. J. The jury find upon the oral testimony, which is uncon-tradicted, and upon the written evidence as well, that the plaintiff took •over the contract between Porter & Boyd and the defendant with the full knowledge and consent of the defendant railroad company. It also appears in the evidence that .the plaintiff actively engaged in executing the contract, working day and night with all the force and machinery that could reasonably be employed; that the defendant railroad company expressly agreed to an extension of time, but afterwards únlaw- *410 fully terminated the contract and ejected the plaintiff from the premises.. The first two issues as to execution of the contract between Porter & Boyd and the railroad company, and later between Porter & Boyd and the plaintiff, were answered “Yes” by consent. The jury found, in response to the third issue, that the defendant railroad company, being informed of the terms of the contract between Porter & Boyd and the-plaintiff, assented that the plaintiff should take over such contract from Porter & Boyd and complete the work without written consent of the-engineer. There was evidence to justify this finding and also to support the verdict on the fourth issue that the railroad company agreed with the plaintiff to extend the time within which the work was to be-completed, as alleged in the complaint. Indeed, the evidence on this point was not contradicted. The fifth issue, that the defendant railroad company, in violation of the agreements found in the third and fourth, issues, wrongfully and unlawfully terminated in the contract, was un-contradicted. The estimate of the damages was based by the jury upon evidence. The chief controversy as to the law is based upon the refusal of the-court to charge that the contract between the plaintiff and Porter &r Boyd made the plaintiff a subcontractor. This is the main proposition presented by the defendants in this Court. The contract recites that Porter & Boyd “sublet the masonry and. other work required for the reconstruction of the bridge” to the plaintiff “on the terms and conditions enumerated in the contracts between said Porter & Boyd and the railroad company,” and that said Porter &■ Boyd turned over all the material and appliances of every kind on the-premises to the plaintiff and all vouchers, and the plaintiff agreed to-pay for the use of the equipment and material thus turned over, and for-the work already done by Porter & Boyd, the sum of $8,000. In consideration of which the said contractors (Porter & Boyd) agreed to-turn over to the said subcontractor (the Shipplett Concrete Company) the entire amount set out in the contract “between said Porter & Boyd', and the defendant railroad company for the construction of said work.”' It is true that the contract between Porter & Boyd and the plaintiff designated the latter as “subcontractor” but the contract shows that the-word “sublet” is used in the place of the word “assign.” A contract is what its terms make it and not what the parties style it. The terms of this contract made it a complete assignment and transfer of all of Porter & Boyd’s interest in the work, and put the plaintiff in their-shoes. The contract turned over all the work to the plaintiff and the-plaintiff was to receive all the pay. The defendant railroad company, with knowledge of this contract, assented that the plaintiff should takeover the work and complete it, and agreed to an extension of time. *411 In Ormond v. Ins. Co., 145 N. C., 140, the Court said: “No particular form of words is essential to effect an assignment. . . . An assignment is substantially a transfer, actual or constructive, with clear intent at the time to part with all interest in the thing transferred, with a full knowledge of the rights so transferred.” In Temple Co. v. Guano Co., 162 N. C., 87, Mr. Justice Walker said: “We must search for the purpose in the instrument and be governed by its language, it is true, but it should not be subjected to any strained or narrow construction, for he who stops at the letter goes but skin deep into the meaning.” By analogy, 1 Wood Landlord and Tenant, 114, says: “If the tenant parts with the demised premises for the whole of the term, although his deed purports to be an under-lease, yet it is in legal effect an assignment.” In Cameron-Tobin Co. v. Tobin, 104 Minn., 333, it is held: “Wherever a lessee grants or transfers the whole term for which the premises are leased to him, leaving no reversionary interest in himself, it amounts to an assignment and is not a sublease. This results by operation of law,, without regard to the form of the instrument. . . . Here what purported to be a sublease was in fact an assignment of plaintiff’s interest to the premises leased by it.” Under the contract the. plaintiff was to do the work and was to get the pay. Porter & Boyd agreed that they would “turn over to the subcontractors the entire amount set out in the contract.” If the vouchers were made out in the name of Porter & Boyd, this contract required them to turn these vouchers over to the plaintiff, which the evidence shows that they did. The fact that the plaintiff, under its contract with Porter & Boyd, was to receive all the pay and that the defendant railroad company, with knowledge of said contract, assented thereto and extended the time makes the plaintiff the real party in interest. The fact that the words “subcontractor” and “sublet” were used does not alter the legal effect of the transaction by which the plaintiffs became in effect entirely substituted for Porter .& Boyd in completing the work. No error.