Ron Medlin Construction v. Harris

JACKSON, Judge,

dissenting.

Because I perceive that the principle that there can be no implied contract where an express contract exists on the same subject matter is meant to apply between the same parties, I must respectfully dissent.

The majority primarily relies upon two cases to conclude that Ron Medlin Construction cannot recover in quantum meruit against defendants because there was an express contract between defendants and George Ronald Medlin: [Vetco] Concrete Co. v. [Troy] Lumber Co., 256 N.C. 709, 124 S.E.2d 905 (1962) (“Vetco”) and Jenco v. Signature Homes, Inc., 122 N.C. App. 95, 468 S.E.2d 533 (1996).

The majority is correct that in Vetco, our Supreme Court stated that “‘[t]here cannot be an express and an implied contract for the same thing existing at the same time.’ ” Vetco, 256 N.C. at 713, 124 S.E.2d at 908 (quoting 12 Am. Jur. Contracts § 7 (1938)). However, the end of the paragraph from which the quotation is taken contains this additional language: “It is further stated in a footnote [in American Jurisprudence] that, ‘Perhaps it is more precise to state that where the parties have made a contract for themselves, covering the whole subject matter, no promise is implied by law.’ ” Id. at 714, 124 S.E.2d at 908 (emphasis added). This additional language makes clear that Veteo was referring to the fact that the same parties cannot have both an express and an implied contract for the same thing.

It was after this discussion of the general principle in Veteo that the Supreme Court continued discussing the rule as applied to a third party:

The same rule has been applied to benefits conferred under a special contract with a third person. When there is a contract be*498tween two persons for the furnishing of services or goods to a third, the latter is not liable on an implied contract simply because he has received such services or goods.

Id,, (quoting 12 Am. Jur. Contracts § 7, n.20 annots. (1938)). In Vetco, there was an express contract between the plaintiff and another party to provide materials to construction sites, some of which were owned by the other party, some of which were owned by the defendant— who was not a party to the express contract.

Unlike in Veteo, we do not have a third-party beneficiary situation in the case sub judice. Defendants, as buyers, did not contract with George Ronald Medlin, as seller, to provide goods or services to Ron Medlin Construction, a third party. Defendants were not third parties benefitting from an express contract between George Ronald Medlin and Ron Medlin Construction. Here, defendants contracted with George Ronald Medlin to provide services to them. Ultimately, Ron Medlin Construction provided those services to defendants.

Further, if we return to the source upon which Veteo relied for these principles, we learn that an implied contract is not always precluded by the existence of an express contract. “The mere fact that the parties have attempted to make an express contract but have not succeeded in making it enforceable with respect to some of its terms does not prevent the implication of a promise to pay for benefits conferred thereunder.” 12 Am. Jur. Contracts § 7 (1938).

In Jenco, the Court concluded: “Defendants argue in the alternative that they are entitled to recover payment under the theory of quantum meruit. This argument is also without merit because recovery under quantum meruit is not applicable where there is an express contract.” Jenco, 122 N.C. App. at 100, 468 S.E.2d at 536 (citing Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968); Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327 (1983)) (italics added). Two of the three defendants in Jenco were signatories to the express contract. See id. at 99-100, 468 S.E.2d at 534. According to the opinion, Signature Homes Corporation — who did not sign the express contract — did not seek to recover based upon a breach of contract; however, it — as well as Craig R. Wieser — did seek to recover in the alternative based upon quantum meruit. Id. at 100, 468 S.E.2d at 536.

It is not clear that the Court considered that, as a practical matter, Signature Homes Corporation could not argue quantum meruit in the alternative if it had not argued breach of contract in the first *499instance. Had it done so, it is not clear that the Court would have reached the same conclusion as to Signature Homes Corporation. Further, as stated in the original majority opinion in this case, the Jenco opinion did not address whether Craig R. Wieser — who had a valid contractor’s license — could have recovered had he not signed the original express contract. Ron Medlin Constr. v. Harris, 189 N.C. App. 363, 367, 658 S.E.2d 6, 10 (2008) ("Medlin I"). The Court also did not address whether Signature Homes Corporation could validly have entered into a new express contract with the Jencos.

I do not question the inability of George Ronald Medlin to recover against the express contract. He was not a licensed contractor at the time he entered into the contract. However, George Ronald Medlin is not seeking to recover on the contract. He is seeking only to have the rights of the various parties declared. The party seeking to recover for the value of the house it constructed for defendants is Ron Medlin Construction — a separate and distinct legal entity from George Ronald Medlin — which is duly licensed as a general contractor.

As stated in Medlin I, in this case, plaintiffs George Ronald Medlin and Ron Medlin Construction alleged that Ron Medlin Construction, and not George Ronald Medlin, “built a residence on defendants’ property reasonably believing it had the right to do so, based upon defendants’ express contract.” Medlin I, 189 N.C. App. at 367, 658 S.E.2d at 10. Defendants “denied the existence of an express contractual relationship between themselves and [Ron] Medlin Construction^]” Id. Therefore, Ron Medlin Construction proceeded upon a theory of quantum meruit. Id.

[T]he purpose of the licensing requirement is to protect the public from incompetent contractors. Although [George Ronald] Medlin was not a licensed contractor, he was the qualifying individual for [Ron] Medlin Construction, which was formed on 28 September 1990. [Ron] Medlin Construction was issued an Intermediate Residential license on 16 January 1991, and its license was changed to an Intermediate Building license in 1993, after [George Ronald] Medlin passed the exam for a building contractor’s license. [George Ronald] Medlin was a licensed contractor from 21 May 1986 until 31 December 1992. [Ron] Medlin Construction, not [George Ronald] Medlin, seeks to recover the value of its services in building defendants’ home. The North Carolina general contractor licensing requirements bar recovery by an unlicensed general contractor. [Ron] Medlin Construction is not an unlicensed general contractor.

*500Id. at 367-68, 658 S.E.2d at 10. Accordingly, I do not believe Ron Medlin Construction’s claim is barred by the licensing requirements of the State Licensing Board for General Contractors.

Because I do not believe that defendants’ express contract with George Ronald Medlin precludes Ron Medlin Construction from recovering in quantum meruit on an implied contract, I would reverse. As expressed in the original majority opinion in this appeal: “At all times relevant to this case, plaintiff Medlin Construction was a licensed contractor. Defendants may not use the licensing statutes as a shield to avoid any obligations owing to plaintiff Medlin Construction for the building of their home.” Medlin I, 189 N.C. App. at 368-69, 658 S.E.2datll.