Penney v. Carpenter

231 S.E.2d 171, 32 N.C. App. 147, 1977 N.C. App. LEXIS 1871

• Court: Court of Appeals of North Carolina
• Decided: January 5, 1977
• Docket: No. 7621DC609
• Status: Published

Opinion

BRITT, Judge.

Did the trial court err in allowing defendants’ motion for directed verdict and dismissing the action? We hold that it did.

Defendants’ motion for directed verdict presented the question whether, as a matter of law, the evidence offered by plaintiffs, when considered in the light most favorable to them, was insufficient to be submitted to the jury. Roberts v. Memorial Park, 281 N.C. 48, 187 S.E. 2d 721 (1972); Sink v. Sink, 11 N.C. App. 549, 181 S.E. 2d 721 (1971).

We think the principle of novation or substitution of a new contract between the parties applies in this case, raising questions for jury determination. It is clear that parties may modify their agreement by entering into a new contract prescribing their rights and liabilities in regard to the entire subject matter and the new agreement amounts to a novation. Fowler v. Insurance Co., 256 N.C. 555, 124 S.E. 2d 520 (1962); Stanley v. Cox, 253 N.C. 620, 117 S.E. 2d 826 (1961).

In 2 Strong, N. C. Index 2d, Contracts § 19, we find:

“Whether a new contract between the same parties discharges or supersedes a prior agreement between them depends upon their intention as ascertained from the instrument, the relation of the parties, and the surrounding circumstances.

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“Where the question of whether a second contract dealing with the same subject matter rescinds or abrogates a prior contract between the parties depends solely upon the legal effect of the latter instrument, the question is one of law for the court, but where the second agreement does not show on its face that it must have been intended as a substitution for the prior agreement, and the facts relating to the intent of the parties are controverted, the question of intent is for the jury.”

In the case at bar, defendants contend the addendum to the contract, entered into on _ January 1974, completely changed the terms of the original agreement with respect to their liability for the furnace; plaintiffs contend otherwise. There arises, therefore, a question for a jury to determine, namely, the intention of the parties, based upon the writings, the relation of the parties and the surrounding circumstances. We hold that the court erred in not submitting the case to the jury.

We also hold that the court erred in not admitting the proffered testimony of Hubert French and Darold Baity. The qualifications which they showed were sufficient to entitle them to provide expert testimony with respect to the furnace and boiler.

For the reasons stated, the judgment appealed from is

Reversed.

Chief Judge Brock and Judge Morris concur.