Tisdale v. Elliott , 13 N.C. App. 598 ( 1972 )

CAMPBELL, Judge.

The defendant raises three questions on appeal:

1. Did the trial court err in the admission of evidence ?

2. Did the trial court err in making findings of fact not supported by any competent evidence, and in making the conclusion of law based upon erroneous findings of fact and lack of evidence?

3. Did the trial court err in failing to grant defendant’s motion for a directed verdict at the conclusion of the plaintiffs’ evidence and again at the conclusion of all the evidence and in the signing and entry of the judgment as appears of record?

The defendant’s argument on the first question is that the trial court erred in admitting parol evidence in derogation of the written contract and of events occurring after final settlement.

The defendant made numerous objections to evidence introduced by plaintiff. This evidence was1 testimony as to the condition of the house after its completion by defendant and its acceptance by the plaintiff. Defendant argues that by the terms of the contract acceptance of the house by the plaintiff was a waiver of any known defects and therefore any evidence of conditions known to plaintiff at the time of acceptance is inadmissible.

The parol evidence rule prohibits the use of parol evidence to vary, add to, or contradict a written instrument. Stansbury, N. C. Evidence 2d Ed., Sec. 251. The evidence to which defendant objected did not in any way vary, add to, or contradict the written contract. It was evidence of the condition of the house after acceptance by the plaintiff. It was evidence in support of plaintiff’s allegation that defendant had breached the contract by failing to perform in a workmanlike manner.

The defendant argues that the defects in the plaintiff’s house were known to plaintiff at the time of acceptance; that acceptance waived any known defects and that evidence of known defects was therefore inadmissible. We do not agree with the argument.

It may be conceded that the plaintiff knew of a water problem at the time of acceptance. But the alleged cause of this problem was the defective condition of a buried drainpipe. This defect, covered by several feet of earth, was certainly a latent defect. We agree with defendant that acceptance with knowledge of a defective performance may be deemed a waiver of the defective performance. But acceptance where the defect is unknown, or latent, does not waive the defective performance. Cantrell v. Woodhill Enterprises, Inc., 273 N.C. 490, 160 S.E. 2d 476 (1968). The defect in the case before us was a latent defect. There was no error in the admission of evidence tending to establish a latent defect.

The defendant’s second argument is that the judge made findings of fact not supported by any competent evidence.

The defendant assigns as error findings of fact Nos. 9 and 10 as follows:

“9. The defendant failed to perform the work on the foundation in a workmanlike manner in that the drain tiles were laid 18 inches away from the building foundation, they were not properly placed so as to form a continuous drain, they were not covered with suitable substance to prevent mud and silt from entering them, and the walls were not waterproofed with asphalt. This condition was not known to the plaintiffs at the time of payment under the contract.

10. That by reason of the failure of the defendant to perform the contract in a workmanlike manner, the plaintiffs have been damaged in the following respects:

(a) They have expended $650.00 in having the drain tiles relaid and the basement walls waterproofed, which amount is found to be reasonable.

(b) They have spent 200 hours cleaning water and tar from their basement walls and floor, and the reasonable value of such labor is $300.00.

(c) The bedroom and washroom walls are damaged by water and tar and the reasonable cost of repairs due to such damage is $50.”

There is ample evidence to support finding of fact No. 0 in the testimony of plaintiff’s witness Joe B. Marion. Mr. Marion testified that the drains were staggered, not together; that nothing covered the joints; that the drains were half filled with mud and debris and that the tiles were laid 18 inches from the building foundation. There was further evidence that plaintiff was unaware of these conditions until Mr. Marion dug down to the drains to inspect them. There was also testimony that the walls of the basement had not been waterproofed and that the tiles, as they were laid were improper for drainage purposes.

The defendant presented evidence that the tiles were properly laid. But where there is a conflict in the evidence the question is one of fact to be determined by the trial court. Burgess v. Gibbs, 262 N.C. 462, 137 S.E. 2d 806 (1964). Where the findings of the trial court are supported by competent evidence they will not be disturbed on appeal. Chappell v. Winslow, 258 N.C. 617, 129 S.E. 2d 101 (1963). Competent evidence supports the findings in the case before us.

There is also sufficient evidence to support finding of fact No. 10. There is evidence as to the cost of relaying the drain tiles, the amount of labor required to clean the house after the leakage, the cost of labor and the cost of repairing the walls inside the house. The trial court’s findings will not be disturbed.

The defendant contends that his motions for directed verdict should have been sustained. Viewing the evidence in the light most favorable to the plaintiff, there is ample evidence of a factual question for determination by the trier of the facts, .and this was1 the judge in this case. The evidence supported the findings of fact and these supported the conclusion of law.

In the entire trial we find

No error.

Judges Morris and Parker concur.