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Dealers Specialties Inc. v. Neighborhood Housing Services Inc.

Filed: May 4, 1982.

DEALERS SPECIALTIES, INC., PLAINTIFF
v.
NEIGHBORHOOD HOUSING SERVICES, INC., DEFENDANT AND THIRD PARTY PLAINTIFF V. LONNIE AUTRY, THIRD PARTY DEFENDANT



Appeal by defendant as a matter of right, G.S. 7A-30(2), from a decision of the Court of Appeals, Branch, Chief Justice.

Branch

We are of the opinion that the majority in the Court of Appeals reached the correct result and except as hereinafter modified we affirm the decision of the Court of Appeals and adopt the reasoning and legal principles enunciated in that decision as our own.

I

We first consider Judge Becton's dissent which in effect concluded that the agreement between plaintiff and defendant constituted only a conditional promise to pay and was conditioned on Autry's unfulfilled obligation to complete the project.

The trial judge made a total of eleven findings of fact, and the only exception to the findings appear in the record following finding of fact number ten as follows:

Exception (to all of the above findings of fact) No. 18

Our Appellate Rule 10(b)(2) requires in part that "[a] separate exception . . . be set out to the making . . . of each finding of fact or conclusion of law which is to be assigned as error." Defendant's single exception to ten of the court's findings of fact constituted a "broadside exception" which this Court has consistently held to be ineffectual. Hicks v. Russell, 256 N.C. 34, 123 S.E.2d 214 (1961); Logan v. Sprinkle, 256 N.C. 41, 123 S.E.2d 209 (1961). Defendant thus has taken no valid exception to the findings of

fact and consequently, the court's findings of fact are presumed to be supported by competent evidence, and are binding on appeal. Keeter v. Lake Lure, 264 N.C. 252, 257, 141 S.E.2d 634, 638 (1965); Insurance Co. v. Trucking Co., 256 N.C. 721, 725, 125 S.E.2d 25, 28 (1962).

We are of the opinion that in the state of this record the judgment for plaintiff could be entered without further consideration since these findings support the trial judge's conclusions and the conclusions in turn support his judgment entered. However, we elect to consider finding of fact number three which appears to us to be the crucial finding upon which Judge Becton's dissent was founded. That finding states:

3. On or about September 29, 1978, Mr. Rimel received a telephone call from a man who identified himself as Ron Conrady, Assistant Director of the Defendant Neighborhood Housing Services, Inc. Mr. Conrady informed Mr. Rimel that the Defendant was financing the Penny job and asked the plaintiff to extend credit to the third-party defendant. Mr. Conrady told Mr. Rimel that the plaintiff would be protected (1) by the defendant's issuing only a two-party check to the third-party defendant, payable to the third-party defendant and the plaintiff, and (2) that the third-party defendant would be required to present lien waivers from all subcontractors and material suppliers before making his final draw from the Defendant. [Emphasis and numbering added.]

Admittedly, there are two possible interpretations as to the intent of the parties as reflected in the above finding. However, we think that the more reasonable one is that adopted by the majority in the Court of Appeals. Our consideration of this finding leads us to conclude that it contains two independent provisions. The first portion of the parties' agreement as set out in this finding states that any check issued to Autry by defendant as a progress payment must be a two-party check to Autry and plaintiff. This procedure would have effectively protected defendant, the homeowner, and plaintiff. In our opinion, the portion of the finding following the conjunction "and" was in addition to and independent of the ...


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