Lane & Co. v. Central Engineering Co.

Clark, C. J. This cause was ably argued upon both sides, but we think that the matters in controversy were almost entirely for -the consideration of the jury, who have found the facts in accordance with the contention of the plaintiff, and that judgment was properly entered against the engineering company for the full amount claimed by plaintiff, subject to the counterclaim of $300. The defendant engineering company claimed that there was not sufficient allegation of a change in the contract, and that the evidence concerning such changes was incompetent because they varied a written contract. We think, however, the allegations are clearly stated and the decisions are settled that the change varying a written contract was competent, as it was made subsequent to the original contract. Freeman v. Bell, 150 N. C., 148; Mfg. Co. v. McPhail, 181 N. C., 208. Bishop, who represented the defendant engineering company in requesting the change of the stone to a smaller size, stated that the plaintiff would be reimbursed for the extra expense incurred. He was superintendent in charge of the work in Burlington on behalf of the company. The company accepted the work, and is chargeable for the value of the same, even if there was no express promise. It is estopped by receiving benefit under the change in the contract to deny its validity and the company’s liability therefor. The city of Burlington having admitted that it had'in hand $2,413.50 balance due the engineering company for the work done and submitted its readiness to pay this amount in its hands to the person determined *309 by tbe verdict, judgment was properly rendered tbat tbe city pay over tbat amount to tbe plaintiff, to be credited upon tbe judgment rendered against tbe engineering company. We tbink tbe issue submitted was sufficient to present every phase of tbe questions in controversy, wbicb, indeed, bave been practically passed upon in Powell v. Lumber Co., 168 N. C., 632, and need not be repeated in tbis opinion. No error.