PORT CITY ELECTRIC COMPANY v. Housing, Inc. , 23 N.C. App. 510 ( 1974 )

209 S.E.2d 297 (1974) 23 N.C. App. 510

PORT CITY ELECTRIC COMPANY
v.
HOUSING, INCORPORATED.

No. 7421SC485.

Court of Appeals of North Carolina.

November 6, 1974.

Collier, Harris, Homesley, Jones & Gaines by Walter H. Jones, Jr., Mooresville, for plaintiff.

Hoyle, Hoyle & Boone by John T. Higgins, Jr., and John T. Weigel, Jr., Greensboro, for defendant.

BROCK, Chief Judge.

Defendant's entire argument on this appeal is that the evidence on the summary judgment hearing shows a genuine issue as to a material fact, and therefore summary judgment for plaintiff establishing defendant's liability on the contract was error. Defendant argues that the evidence establishes a genuine issue as to a novation of the original contract. The argument is that C. P. Robinson agreed to assume defendant's responsibilities under the original contract and that plaintiff acquiesced in this change of parties.

By the use of interrogatories the parties have fully explored and developed the facts concerning the alleged novation. At the hearing on plaintiff's motion for summary judgment, the trial judge considered the pleadings, the contract, the interrogatories, the exhibits, and the affidavits before concluding that no genuine issue as to a material fact was raised with respect to the alleged novation. It will serve no purpose for us to articulate a summary of these lengthy documents. Suffice to say, in our view it is clearly established that defendant executed the original contract; that defendant and C. P. Robinson signed a written document concerning responsibilities of C. P. Robinson for performance of defendant's obligations under the original contract; that defendant never notified plaintiff of an attempted substitution of Robinson in the place of defendant under the original contract; and that plaintiff in no way exhibited acquiescence in such a substitution, if such was in fact intended by defendant and Robinson. It is defendant's argument that plaintiff thereafter dealt with Robinson only. However, this argument is defeated by the terms of the original contract, where plaintiff and defendant agreed as follows in Article 4: "The work to be performed under this contract shall be commenced as per schedule supplied by C. P. Robinson Construction Co. and completed as per schedule supplied by C. P. Robinson Construction Co."

The only indication in this record that plaintiff was aware of an agreement between defendant and Robinson is a conclusory allegation in defendant's answer, a conclusory statement in defendant's affidavit, the argument in defendant's brief, and oral argument by defendant. These conclusory statements, unsupported by factual allegations and evidence, are not sufficient to raise a genuine issue as to the material fact of a novation.

A novation is generally described as the substitution of a new contract for an existing valid contract by agreement of the parties, and ordinarily the parties must have intended that the new agreement should be in substitution for and extinguishment of the old. 2 Strong, N.C. Index 2d, Contracts, § 19. Although such an agreement can possibly be consummated by ratification, in our opinion evidence of ratification is wholly lacking in this record; therefore no genuine issue as to this fact has been raised.

In our opinion summary judgment for plaintiff establishing defendant's liability under the contract and the order for trial on the sole issue of the balance due under the contract were correct. The same are affirmed and the cause remanded to the Superior Court for trial in accordance with the terms of the judgment appealed from.

Affirmed and remanded.

MORRIS and MARTIN, JJ., concur.