Andrews proceeded to work under the implied arrangement until March 4, when he attempted to change the provision as to reasonable fees to a contingent fee of 15%. Whether that agreement be considered a nullity because there was no meeting of the minds or whether it is void because contrary to public policy, we believe it to be the better rule that such failure leaves the previous agreement in full force and effect. As stated in Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101, 103 (1956): "A subsequent illegal agreement by the parties cannot affect a previous fair and lawful contract between them in relation to the same subject. The change is regarded as a mere nullity, and as such cannot scathe the original contract.
In that event, obviously, the amendatory agreement could have no effect and the original contract must stand. Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101 (1956); cf. Spellman v. Ruhde, 28 Wis.2d 599, 137 N.W.2d 425 (1965). We have considered Yee's other specifications of error.
The basic error in this case is that the evidence was developed upon one theory, and the court submitted it to the jury upon another theory. Upon Bryan's stipulation that at all times pertinent to this litigation it was not licensed to construct buildings "where the cost is $20,000.00 or more," Judge McKinnon correctly dismissed its action against owners for the balance due under the terms of the contract upon which it had sued. McArver v. Gerukos, 265 N.C. 413, 144 S.E.2d 277; Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101; Courtney v. Parker, 173 N.C. 479, 92 S.E. 324. He correctly retained owners' counterclaim, which stated a cause of action against Bryan for breach of contract and faulty work. [2, 3] The purpose of Article 1 of Chapter 87 of the General Statutes, which prohibits any contractor who has not passed an examination and secured a license as therein provided from undertaking to construct a building costing $20,000.
Defendant's last assignment of error is that the court failed to instruct the jury in accordance with the provisions of G.S. 1-180. This assignment of error is overruled for two reasons: One, it is broadside. S. v. Webster, 218 N.C. 692, 12 S.E.2d 272; Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101. Second, it is not brought forward, and discussed in defendant's brief. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 563; S. v. Hart, 226 N.C. 200, 37 S.E.2d 487.
This assignment of error is untenable. It is a broadside exception. S. v. Webster, 218 N.C. 692, 12 S.E.2d 272; S. v. Triplett, 237 N.C. 604, 75 S.E.2d 517; Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101. All defendant's assignments of error are overruled.
e court establish without contradiction that defendant, individually, contracted with the plaintiffs to build the houses involved; that the contract price in each instance exceeded $30,000; and that defendant was not licensed as a general contractor under the provisions of Article I of Chapter 87 of the North Carolina General Statutes. These uncontradicted and therefore established facts required the entry of summary judgment dismissing the counterclaims as a matter of law. For G.S. 87-1, et seq., then required a general contractor's license for all persons, firms or corporations who "for a fixed price, commission, fee or wage" undertook to bid upon or construct any building, the cost of which exceeded $30,000; defendant violated the law by contracting to build houses costing $74,700 and $57,700; and our courts will not enforce a contract that the law forbids. Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327 (1983); Bryan Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968); Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101 (1956); Courtney v. Parker, 173 N.C. 479, 92 S.E. 324 (1917). Though the contradictory affidavits of defendant and Hopper do raise an issue of fact as to whether they were partners in building the houses involved, it does not follow, as defendant argues, that the dismissal of the claim was error, because whether Hopper and defendant were partners is immaterial to the enforceability of the counterclaims for two reasons.
We note, however, that even if it should be determined that the "project" with the "extras" added was a single project having a value in excess of $75,000.00, Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101, which was one of the cases cited and relied upon in the opinion in Builders Supply v. Midyette, supra, is authority supporting plaintiff's right to recover at least upon a quantum meruit for work done on the contract up to the time that changes, made at the request of defendants, resulted in the project having a value in excess of the limitations of plaintiff's license. The summary judgment sustaining defendants' plea in bar and dismissing plaintiff's action is reversed and this cause is remanded.
In Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968), the Court held: "Upon Bryan's stipulation that at all times pertinent to this litigation it was not licensed to construct buildings `where the cost is $20,000.00 or more,' Judge McKinnon correctly dismissed its action against owners for the balance due under the terms of the contract upon which it had sued. McArver v. Gerukos, 265 N.C. 413, 144 S.E.2d 277; Tillman v. Talbert, 244 N.C. 270, 93 S.E.2d 101; Courtney v. Parker, 173 N.C. 479, 92 S.E. 324. * * *" Plaintiff's only assignment of error is that "(t)he Court erred in granting Defendant's motion to dismiss for failure to prove a case and in entering judgment dismissing the case with prejudice."