Design Associates Inc. v. Powers

HEDRICK, Chief Judge. Defendant’s first three assignments of error relate to the admission and exclusion of evidence. Defendant argues that the court erred in 1) allowing a member of plaintiff architectural firm to testify that plaintiffs rate of $35.00 per hour was “on the low side,” 2) excluding evidence of how much other architects and builders told defendant that plaintiffs plans were worth, 3) admitting evidence relating to defendant’s income and the cost of his house and land. Plaintiffs claim is for breach of contract. Plaintiff alleged in its complaint and offered evidence tending to show that it had an express contract with defendant to perform architectural services, and that defendant had failed and refused to pay the balance due for services rendered. In its complaint, plaintiff sought $8,861.00. Plaintiffs evidence tended to show that the agreed-upon contract price was the lesser of 1) 5% of the cost of the house and 2) $35.00 per hour of work spent on the plans. Plaintiffs evidence also tended to show that 337.5 hours were spent on the plans. Three hundred thirty-seven and a half hours multiplied by $35.00 per hour yields a sum of $11,812.50. The cost of the house was estimated by plaintiff to be $187,000.00. Five per cent of $187,000.00 is $9,350.00. Plaintiffs bill was for $9,361.00, which is approximately the lesser of the two figures. Defendant paid plaintiff $500.00, leaving a balance of $8,861.00, the amount plain [218] tiff sought in its complaint. In his answer, defendant denied having entered into a contract with plaintiff. At trial, defendant’s evidence was equivocal as to whether the parties had entered into a contract and to the terms of any such contract. No question is raised on appeal regarding the failure of the court to submit an issue to the jury with respect to whether the parties entered into a contract or the terms thereof. As pointed out before, the only issue submitted to the jury related to damages. In a suit for damages arising out of a breach of contract, the injured party is to be placed as near the position he would have occupied had the breach not occurred. Coble v. Richardson Corp., 71 N.C. App. 511, 322 S.E. 2d 817 (1984). In the present case payment of the unpaid balance of the contract price would put plaintiff, the injured party, in the position he would have occupied absent the breach. We find no error in the admission or exclusion of any of the evidence challenged by defendant’s first three assignments of error. Assuming arguendo, however, that some of this evidence was erroneously admitted or excluded, defendant has failed to show any prejudice in its admission or exclusion, since the jury’s award of $6,000.00 is clearly supported by the unchallenged evidence admitted at trial. Defendant finally contends the trial court erred in failing to dissolve the lien placed on his home by plaintiff. Defendant argues that there can be no lien because plaintiffs work was not used to improve defendant’s real property. We disagree. G.S. 44A-8 provides as follows: Any person who performs or furnishes labor or professional design or surveying services or furnishes materials pursuant to a contract, either express or implied, with the owner of real property for the making of an improvement thereon shall, upon complying with the provisions of this Article, have a lien on such real property to secure payment of all debts owing for labor, done or professional design or surveying services or materia! furnished pursuant to such contract. [219] There is no requirement in G.S. 44A-8 that the lienholder’s work actually improve the property. Plaintiff in the present case furnished professional design services pursuant to a contract. This was sufficient to entitle plaintiff to a lien to secure payment for those services. This assignment of error is without merit. No error. Judges Phillips and ORR concur.