Craven County NcArchives Court.....Commissioners Of Craven County, William A. Foy, Ex'r V. 1892
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Source: N C Reports
Written: 1892

William A. Foy, Ex'r v. Commissioners of Craven County

Contract - Evidence

Plaintiff made a written contract with defendant to erect a bridge in 
accordance with specifications at a point where there was an old bridge, and 
in the execution of the contract removed the timber from the first structure 
to another point; plaintiff having been paid the contract price, brought suit 
to recover compensation for services rendered in the removal of the old 
bridge: Held, that there being no allegation or proof that this service was 
performed at the request of defendants, or that they took benefit under it, he 
was not entitled to recover.

This was a Civil Action tried before Winston, J., at Spring Term, 1892, of 
Craven Superior Court.

The plaintiff alleged that the defendant was indebted to his testator, William 
Foy, for taking down and removing "Cleremont bridge" to the lower Brice's 
creek bridge as set forth in the complaint.

The plaintiff proved by one Hugh Murdock that he was a bridge builder, and had 
been such for the last fifty years; that he removed "Cleremont bridge" for the 
plaintiff testator, and built the new bridge in its place; that a large part 
of the timber of the old bridge was rafted and taken about four miles to the 
defendant's bridge at Brice's creek; that it was the custom that if a contract 
to build bridges was silent as to who should have timber in old bridge removed 
to erect new bridge that such timber belonged to the contractor to build the 
bridge.

Plaintiff proposed to show by this witness that if such timber was retained by 
the party contracting to have the bridge built, it was the custom for the 
party removing the same to receive reasonable compensation for removing the 
same.

This was excluded by the Court. Objection and exception.

The bridge was 700 or 800 feet long, and the new bridge was put in same place 
and on same abutments as old one by plaintiff testator. That to take down the 
old bridge and remove it to Brice's creek was worth one-third as much as the 
contract price to build the new bridge.

The defendant then introduced in evidence the contract between plaintiff's 
testator and defendant to build the bridge, the material parts of which are as 
follows: "Be it remembered that on the 20th of August, 1883, it is agreed 
between William Foy and the Board of Commissioners of Craven County as 
follows: That said Foy, etc., agrees that he shall and will within the space 
of ------, until January 1, 1884, next after the date hereof, in a good and 
workmanlike manner and at his own proper charge and expense, at a point on 
Trent river, about three miles above Newbern where there is now a bridge known 
as Cleremont, well and substantially erect, build and finish out of the best 
material a wooden bridge according to the plan and specifications hereto 
attached and made a part of the agreement, the said Foy furnishing all of the 
timber and other material; in consideration whereof the Board of Commissioners 
covenant and agree to pay to Foy, his executors and administrators the sum of 
$3,000 in the manner following: one-third from time to time as needed up to 
one-third completion; one thousand dollars more when the work is two-thirds 
completed, and the balance when said bridge is finished and accepted by the 
Board: Provided, that before any payments are made the work shall be inspected 
and approved by the Board, or some one under its direction. And for the 
performance of the agreements above mentioned, the parties do hereby bind 
themselves each to the other in the sum of three thousand dollars. In witness 
whereof," etc. Signed by the parties on the 20th of August, 1883.

It was admitted that the $3,000 mentioned in the contract had been paid, and 
that no new contract had been entered into between the parties.

Plaintiff here rested his case. Thereupon the Court announced its opinion to 
be that if by the general custom a man removing an old bridge is entitled to 
the timber of the old bridge, then, in this action, the plaintiff cannot 
recover, because he does not sue for the conversion of the same, and that the 
custom sought to be engrafted on the written contract in this case contradicts 
the terms of said contract, for that the new bridge cannot be erected where 
the old one stood without removing the latter.

Whereupon the plaintiff submitted to a nonsuit, and appealed.

W. W. Clark for plaintiff
C. R. Thomas for defendant

NC Supreme Court Justice MacRae, J. - The exception to the exclusion of 
evidence was not insisted upon here. The only point presented to us is whether 
the plaintiff would be entitled to recover for moving the material of the old 
bridge to Brice's creek bridge, some distance below the point where the old 
Cleremont bridge was taken down and the new bridge erected by plaintiff.

The contention of the defendant is that there was a written contract between 
plaintiff and defendant for the building of the Cleremont bridge on Trent 
river where the old bridge stood, which contract provided for the building by 
plaintiff of the new bridge and the payment by defendant of $3,000 to 
plaintiff therefor, and that parol evidence was inadmissible to vary the terms 
of said written contract. The claim of plaintiff for taking down the old 
bridge and removing it to the lower Brice's creek bridge, is entirely separate 
and independent of the written contract for the building of the Cleremont 
bridge. The first exception for the exclusion of testimony might have raised 
some question with regard to the written contract and its bearing upon the 
necessary removal of the old bridge before the building of the new, but as we 
have said, this exception was not insisted upon.

The question we have now to consider is whether the plaintiff could, in any 
view of the testimony, have recovered of defendant for the removal of the 
material of the old bridge to the lower Brice's creek bridge. The testimony 
upon this point is that of the plaintiff, "that a large part of the timber of 
the old bridge was rafted and taken about four miles, to the defendant's 
bridge at Brice's creek, and that to take down the old bridge and remove it to 
Brice's creek was worth one-third as much as the contract price to build a new 
bridge." There is no allegation in the complaint, and there is no proof that 
this service was performed at the request or for the benefit of defendant, or 
that defendant accepted or took benefit by the same. So, without passing upon 
the correctness of the opinion expressed by his Honor, we hold that upon the 
complaint and upon the evidence the plaintiff was not entitled to recover, and 
the judgment of nonsuit is

Affirmed.

Additional Comments:
In the NC Supreme Court September Term 1892

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