Heating & Air Conditioning Associates, Inc. v. Myerly
Heating & Air Conditioning Associates, Inc. v. Myerly
Opinion of the Court
The plaintiffs in their complaints alleged that Heating employed Ernst to conduct a special investigation of Heating’s books, records and transactions to determine whether there had been any employee dishonesty; that the defendant was negligent in the performance of the contract; and that as a result of defendant’s negligence the dishonesty of one of Heating’s employees, Paul J. Tanner, was not discovered, which resulted in a loss to Heating in the amount of $90,472.60 and a loss to Bryant, in reliance on Ernst’s work, in the amount of $102,779.81.
At trial the plaintiff’s evidence tended to show the following: In 1968 and 1969 Bryant was a distributor of heating and air conditioning equipment. Heating was in the business of installing and repairing heating and air conditioning equipment. Heating was owned by officers and employees of Bryant. In April 1968 W. B. R. Mitchell, the president of Bryant and secretary-treasurer of Heating, met with Jim Faulkner, a rep
Ernst offered evidence tending to show that it was never employed to do anything for Heating- other than prepare an unaudited financial statement and determine the net worth of the corporation. Ernst was never asked to investigate the conduct of Paul Tanner; and in April or May 1968, Mitchell had not received any reports of embezzlement by Tanner. None of
Rule 52(a) (1) provides that:
“In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.”
Where the judge tries a case without a jury, it is his duty to find the facts specially and state separately his conclusions of law and thereby resolve all controversies between the parties raised by the pleadings and the evidence. Davis v. Enterprises, Davis v. Mobile Homes, 23 N.C. App. 581, 209 S.E. 2d 824 (1974) ; G.S. 1-A-1, Rule 52.
While the plaintiffs contend that the court failed to make findings and conclusions determinative of all the issues raised, we are of the opinion that the only issues raised by the pleadings and the evidence were: (1) whether there was a contract between the plaintiff Heating and the defendant with respect to the defendant conducting a special investigation of Heating’s books, records, and transactions to determine whether there had been any employee dishonesty, (2) whether the defendant negligently performed such a contract, and (3) what damages proximately resulted from such negligence. Obviously, if the court found and concluded there was no special contract for a fraud investigation, there would be no necessity for the court to make findings determinative of the other issues. Our inquiry therefore, with respect to plaintiffs’ claims, will be limited to a consideration of plaintiffs’ contention that the court erred in finding and concluding that there was no “special contract for
The trial court’s findings of fact are conclusive if they are supported by competent evidence, even though there may be evidence to the contrary. Electric Co. v. Shook, 17 N.C. App. 81, 193 S.E. 2d 392 (1972), affirmed, 283 N.C. 213, 195 S.E. 2d 514 (1973) ; Vaughn v. Tyson, 14 N.C. App. 548, 188 S.E. 2d 614 (1972). With respect to whether there was a special contract between Heating and defendant, Judge Ervin made the following pertinent findings of fact:
“The only evidence as to the formation of the special contract between Ernst & Ernst and Htg. & A/C alleged in the Complaint is the testimony of Mitchell as to a telephone conversation between him and Faulkner in late April or early May, 1968. Faulkner denied that any such telephone conversation took place and Mitchell’s testimony that it did was not corroborated or supported by any evidence of any kind, either written or oral. No witness testified that Mitchell ever told him about or mentioned such a telephone conversation during the six years intervening between the time Mitchell said it occurred and the time of trial.”
“The evidence of record fails to persuade the Court by its greater weight that the asserted telephone conversation between Mitchell and Faulkner upon which Htg. & A/C relied to establish the formation of the special contract alleged in the Complaint and which Faulkner denied ever occurred, was substantially as related by Mitchell in his testimony given after a lapse of six years and without any notation, memorandum or corroboration and the Court is unable to find by the evidence and its greater weight what the substance of the asserted telephone conversation was, if it did occur, and the Court finds as a fact that the parties did not enter into a special contract for a special fraud investigation to be conducted by Ernst & Ernst to discover whether or not Tanner or any other employee of Home Comfort [a division of Heating] was dishonest and the Court further finds that the only contract between the parties was a contract for the preparation of financial statements without audit and the preparation of income tax returns for the fiscal year ending April 30, 1968.”
With respect to defendant’s counterclaim against Heating,. Judge Ervin made the following finding of fact:.
“At its request, Ernst & Ernst rendered accounting services to Htg. & A/C consisting of the preparation of financial statements without audit and the .preparation of tax returns for its fiscal year ending April 30, 1968. Said services were reasonably worth $4,295.00 and Htg. & A/C agreed that it would pay to Ernst & Ernst what said services were reasonably worth. Htg. & A/C has not paid anything for said services, although Ernst & Ernst has demanded payment in said amount. There is justly due and owing from Htg. & A/C to Ernst & Ernst the sum of $4,295.00 with lawful interest on the sum of $3,735.00 from August 30, 1968, and on the sum of $560.00 from November 29, 1968.”
Plaintiff Heating simply contends that the services rendered by the defendant were “wholly worthless” and that the court erred in entering judgment for the defendant on the counterclaim. Judge Ervin’s finding and conclusion that the services rendered to the plaintiff was reasonably worth $4,295.00 is supported by the record, and is binding on appeal.
The judgment that plaintiffs have and recover nothing of the defendant on their claims, and that the defendant recover $4,295.00 plus interest on defendant’s counterclaim against the plaintiff Heating is affirmed.
Affirmed.
Reference
- Full Case Name
- HEATING AND AIR CONDITIONING ASSOCIATES, INC. v. CHARLES S. MYERLY, t/a ERNST & ERNST, a partnership BRYANT HEATING AND EQUIPMENT COMPANY, a corporation v. CHARLES S. MYERLY, t/a ERNST & ERNST, a partnership
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- Status
- Published