Robbins v. C. W. Myers Trading Post, Inc.

RodmaN, Ji,

concurring in result. Plaintiffs are entitled to such *481damages as the law may allow for'the'breach of a contract correctly interpreted. To interpret it is- necessary to ascertain the intent of the parties when the contract was made. That intent binds them. When they have chosen words which are plain and unambiguous to express that intent, neither may offer evidence to show a different understanding.

The opinion of the majority applies this rule to the contract therein quoted. I think the rule is not applicable to the facts of this ease. The contract obligates defendant to construct “in a satisfactory manner and as a first class turn-key job.” It also provides that “the same kind of material used in Endsley Ave. house” shall be used.

Plaintiffs were permitted to show what, in the building trade, the phrase “first class turn-key job” means, when, as here, the builder is obligated to furnish both labor and material. I think the evidence competent. The contract does not say that workmanship shall be first class but materials may be shoddy. To reach that result, it is necessary to conclude that the word “kind” in the phrase “kind of material used” necessarily means- both quality and character of material. Unexplained, that meaning might be given to it, but it is also susceptible, I think, to a meaning of character without regard to quality. The kind of material to be used is pine, ash, poplar, gum, or mahogany wood or brick or concrete as used in the Endsley Avenue house. In ordinary parlance one might inquire, “What kind of material was used in making the garment?” and receive a reply, “Wool, cotton, or silk.”

In ascertaining the meaning of the word “kind,” it is well to ré-member the language of Justice Holmes: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 245 U.S. 418, 62 L. ed. 372.

The contract was -written by an official of defendant. If we are permitted to hear the author’s own interpretation of the phrase “first class turn-key job,” made when he was writing the contract, we find that it covers both materials and workmanship.

I think the rule here applicable is as stated by Brown, J., in Neal v. Ferry Co., 166 N.C. 563, 82 S.E. 878. He said: “It is well settled that where words or expressions are used in a written contract, which have in particular trades or vocations a known technical meaning, parol evidence is competent to inform the court and jury as to the exact meaning of such expression in that particular trade or voca*482tion, and it is for .the' jury to hear the evidence and give effect to áuch expressions as they may find their meaning to be.”

.•.Plaintiffs are, I think, entitled to have the jury consider the evidence declared incompetent.

¡■"When the intent of the parties has been properly ascertained from the words used, plaintiffs are entitled to such damages for the breach as are allowed by law.

■ On the previous appeal, 251 N.C. 663, 111 S.E. 2d 884, it was said: “Plaintiffs’ evidence tends to show that in order to remedy deficiencies a substantial part of what has been done must be undone. If the jury accepts, plaintiffs’ theory of the case, the measure of' damages is the ‘difference in value’ rule stated above.” That is the law of this case. Notwithstanding the rule so announced, the court, over defendant’s objection, permitted plaintiffs to offer evidence and the jury to base its verdict on the cost of remodeling rather than the difference in value between the house as contracted for and the house as constructed. As a result plaintiffs have judgment for more than they are entitled to. This error entitles defendant to a new trial.

DeNNY and Bobbitt, JJ., join in concurring opinion.