Spear v. Daniel

WELLS, Judge. Plaintiffs contend the court erred in granting defendants’ motion for directed verdict against their claim for breach of contract. We agree as to plaintiffs’ claim against defendant Daniel Homes, Inc. The dispositive question is whether plaintiffs waived their rights under the contract by moving into the residence prior to payment of the final installment due under the contract. Plaintiffs’ evidence was clearly sufficient for submission to the jury unless plaintiffs, as a matter of law, waived their rights under the contract. Paragraph #9 of the 8 September Agreement provides: 9. Occupancy Prior to Final Disbursement. Should Owner move furnishings or appliances other than those in the contract, or otherwise occupy the dwelling prior to payment to Contractor of the final installment of contract price, together with any and all other sums due, such action shall be deemed final and absolute approval of the Contractors performance of this Agreement, and the Owners; satisfaction therewith, and shall relieve contractor of further performance of duty with respect to this Agreement. Such action [284] shall also void the Contractor’s express warranty set forth hereinafter, and it shall be a release by Owner unto contractor of any and all implied warranties with respect to construction of the dwelling. Upon such action, the balance of contract price, together with all other sums payable, shall become immediately due by Owner to Contractor. Defendants contend that by electing “to move into the house before matters were settled . . .” plaintiffs are now restricted by the stipulations in Paragraph #9 from bringing this action for breach of contract. It is apparently on this basis that the court directed a verdict against plaintiffs on this claim. However, defendants’ argument disregards the evidence showing that Mr. Daniel refused to finish the residence because plaintiffs would not execute a separate, new written agreement in which plaintiffs were required to agree as follows: This will acknowledge that this date we have paid to Daniel Homes, Inc. the sum of $251.11 as full and final payment under the terms of the construction contract that exists between us. We further hereby acknowledge that Daniel Homes, Inc. has completed the construction work agreed upon and it has been accepted by us and we do hereby release him from any further claim on our part against him in any matter relating to the construction of our dwelling located in Country Club East Subdivision. If Daniel Homes conditioned its own further performance, viz., completion of the residence, on plaintiffs’ execution of the above release and thereafter ceased construction when plaintiffs refused to do so, as shown by the plaintiffs’ evidence, plaintiffs’ subsequent actions in moving into the residence and completing construction on their own would not constitute a waiver of their rights to sue on the contract notwithstanding the stipulations contained in Paragraph #9. One who repudiates his duty of performance under a contract will not be allowed to take advantage of his own act by denying his liability under the contract. See Commercial National Bank v. Charlotte Supply Co., 226 N.C. 416, 38 S.E. 2d 503 (1946); see also Raleigh Paint & Wallpaper Co. v. James T. Rogers Builders, Inc., 73 N.C. App. 648, 327 S.E. 2d 36 (1985). Accordingly, we hold that plaintiffs are entitled to a new trial on their breach of contract claim against Daniel Homes, Inc. [285] Defendant Dallas Daniel correctly contends that plaintiffs could not bring a breach of contract claim against him, individually, since the evidence in the record shows that plaintiffs were dealing with him in his official capacity as president of Daniel Homes, Inc. We thus affirm that portion of the judgment dismissing plaintiffs’ claims against defendant Dallas Daniel. Plaintiffs contend the court erred in granting defendants’ motion for directed verdict against their claim alleging unfair and deceptive trade practices. However, after reviewing the record in light of this contention, we hold that the court properly granted defendants’ motion for directed verdict as against this claim in that plaintiffs failed to present sufficient evidence that defendants’ conduct constituted an unfair or deceptive trade practice under N.C. Gen. Stat. § 75-1.1. Affirmed in part, reversed in part and remanded. Judges Martin and Parker concur.