Martin County v. R. K. Stewart & Son, Inc.

PHILLIPS, Judge. Statesville’s legal obligations to Stewart in this case depend not upon the facts that the contract between Stewart and States-ville is not under seal and Statesville completed its work on the roof more than three years before suit was brought, as decided by the trial court, but upon the following provisions of their contract: Article l The Contract Documents The Contract Documents for the Subcontract consist of this Agreement and any Exhibits attached hereto, the Agreement between the Owner and Contractor dated June 5, 1970, the Conditions of the Contract between the Owner and Contractor (General, Supplementary and other Conditions), Drawings, Specifications, all Addenda issued prior to execution of the Agreement between the Owner and Contractor, and all Modifications issued subsequent thereto, Including Addenda G-l and G-2; Page 2-A inserted herein; Exhibits “A”, “B” and “C” attached. All of the above documents, which form the Contract between the Owner and Contractor, are a part of this Subcontract and shall be available for inspection by the Subcontractor upon his request. [558] Article ll SUBCONTRACTOR’S RESPONSIBILITIES 11.1 The Subcontractor shall be bound to the Contractor by the terms of this Agreement and of the Contract Documents between the Owner and Contractor, and shall assume toward the Contractor all the obligations and responsibilities which the Contractor, by those Documents, assumes toward the Owner, and shall have the benefit of all rights, remedies and redress against the Contractor which the Contractor, by those Documents, has against the Owner, insofar as applicable to this Subcontract, provided that where any provision of the Contract Documents between the Owner and Contractor is inconsistent with any provision of this Agreement, this Agreement shall govern. Because of these contract provisions, the enforceability of Stewart’s claim against Statesville cannot be determined by merely examining the subcontract for a seal and counting the years that have passed, numerous though they have been. By incorporating into their contract another contract and several other contract documents, as was expressly and deliberately done, the parties bound and subjected themselves to all the provisions that those several instruments contain. Booker v. Everhart, 294 N.C. 146, 240 S.E. 2d 360 (1978). What those provisions are, what obligations were created by them, how long they extended, and what statute of limitations applies to them, we have no way of knowing, since none of these papers are in the record before us. Thus, the absence of any genuine issue of fact between the parties at this time can only be surmised or guessed at; it has not been established. Burton v. Kenyon, 46 N.C. App. 309, 264 S.E. 2d 808 (1980). But more directly conclusive of this appeal are the Subcontractor’s Responsibilities quoted above. A plainer example of a subcontractor expressly assuming and being responsible for all of a building contractor’s obligations to the owner with respect to the work subcontracted can scarcely be imagined. What those obligations are, we do not know, but what this part of the subcontract means is quite clearly that: If, after all this time, Stewart is contractually obligated to Martin County because of the roofing job that Statesville did, then Statesville is to the same degree [559] and extent still bound to Stewart; and if Stewart has no further obligation to the plaintiff because of the roof, Statesville has none to Stewart. That we do not now know whether that contract was under seal, or that Statesville denied in its answer that it was, is beside the point at this juncture. Statesville was at liberty under our law to contract as it did and is bound thereby. Troitino v. Goodman, 225 N.C. 406, 35 S.E. 2d 277 (1945). Having expressly assumed all of Stewart’s contract obligations to Martin County because of the roof, Statesville cannot avoid those obligations by pointing to the absence of a seal on its own subcontract; it must await and abide by the outcome of the suit involving Stewart’s contract with Martin County. Thus, the dismissal of Stewart’s claim against Statesville was both premature and erroneous. Reversed. Judges Hill and Johnson concur.