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Greensboro Housing Authority v. Kirkpatrick & Associates Inc.

Filed: March 16, 1982.

GREENSBORO HOUSING AUTHORITY
v.
KIRKPATRICK & ASSOCIATES, INC. V. TALLEY ELECTRIC COMPANY



Appeal by plaintiff from Walker, Judge. Judgment entered 20 November 1980 in Superior Court, Guilford County. Heard in the Court of Appeals 7 January 1982.

Whichard, Judge. Judges Clark and Becton concur.

Whichard

The court based its involuntary dismissal on conclusions that (1) no breach of contract occurred, and (2) if any breach occurred, it could have been discovered by plaintiff in the exercise of reasonable diligence. Its findings of fact, which are supported by competent evidence, sustain its conclusions. We therefore affirm.

The essential facts are:

Plaintiff contracted with Kirkpatrick for the construction of a housing project according to plans and specifications provided by plaintiff's architects. Kirkpatrick subcontracted the electrical construction to Talley.

Plaintiff employed Raymond Smith to work with the architect in planning the project and assuring compliance with the contract documents. The architects, with at least implied approval by plaintiff, employed a consulting electrical engineer to handle installation of the electrical work. Smith, the architects, and the engineer were on the jobsite regularly during construction. Smith prepared several "punch lists" of incomplete items which were eventually completed to his and the architects' satisfaction. On 26 September 1975 plaintiff and the architects executed a "Certificate of Completion" on the project.

On 21 December 1976 fire destroyed a portion of the project. Plaintiff alleged the cause was "a loose connection in the busway

joint"; that Kirkpatrick "constructed and installed the busway in a manner that did not allow any access to the busduct joints"; and that Kirkpatrick's "failure to allow sufficient access" and "failure to discover the same" violated the contract requirements. Following the fire Smith discovered maintenance requirements as to the busduct by removing a plate from the duct. Prior thereto plaintiff had been unaware of these requirements. Smith, however, was on the jobsite regularly while the busducts were being installed; was aware that the closets which housed the busducts were being erected; "saw the busduct materials as they were erected" and "probably saw the closets being constructed"; did not register any objection during the course of construction "about the size of the closets"; and ultimately "satisfied [him]self" regarding construction of the busduct system.

The court found as facts that (1) the architects, by contract with plaintiff, were to be responsible for the supervision and inspection of the project; (2) the architects contracted with the engineer, with plaintiff's awareness and approval, to supervise and inspect the electrical system; and (3) Smith was employed by plaintiff, inter alia, "to ensure proper construction in accordance with the contract documents, including observation of the work as it progressed." These findings are supported by competent evidence and are thus conclusive on appeal. Williams v. Liles, 31 N.C. App. 345, 229 S.E.2d 215 (1976); McNeely v. Railway Co., 19 N.C. App. 502, 199 S.E.2d 164, cert. denied, 284 N.C. 425, 200 S.E.2d 660 (1973).

An agent is one who, by the authority of another undertakes to transact some business or manage some affairs on account of such other, and to render an account of it. He is a substitute, or deputy, appointed by his principal primarily to bring about business relations between the latter and third persons.

SNML Corp. v. Bank, 41 N.C. App. 28, 36, 254 S.E.2d 274, 279, disc. review denied, 298 N.C. 204 (1979). The above findings place the architects and Smith within the above definition of "agent." In addition, plaintiff stipulated that the architects were its agents. "As a general rule, . . . as regards the performance of his supervisory functions with respect to ...


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