Eward v. Kalnen

14 N.C. App. 619 | N.C. Ct. App. | 1972

MALLAED, Chief Judge.

The only question involved on this appeal is whether the plaintiff complied with the terms of the option.

Judge Bone found, upon competent evidence, that on 17 February 1967, before the option expired at midnight on 28 February 1967, the plaintiff and the male defendant met at the office of the male defendant’s attorney and the following transpired :

“* * * At that time Mr. Calder showed plaintiff a deed from Elizabeth M. Kalen (sic), an unmarried woman, to Melvin A. Eward, the plaintiff, which had been duly executed by said grantor on February 16, 1967. At some time previously the defendant had put title to the land in the name of his sister, Elizabeth M. Kalen (sic), to avoid its becoming encumbered by a lien which the United States Government was threatening to file against him on account of a disputed tax lien. At the time Mr. Calder exhibited said deed to plaintiff, he also, gave plaintiff an itemized statement showing that defendants claimed $13,339.86 for physical improvements made by them on the property, and told plaintiff to look at these papers and give them the money, or words to that effect. The plaintiff replied that he did not have the money with him but had made arrangements with the Wilmington Production Credit Association to borrow the money and he had enough there to pay the $11,000.00 purchase price but that it was impossible for him to pay any such fantastic amount as defendants were claiming for improvements; that if the amount for improvements was over $500.00 he would not be interested in buying the property back.

The plaintiff then walked out and the defendant followed him out into another room and said ‘let’s make a deal.’ The plaintiff replied, ‘No, I’ve already made one deal too many with you,’ and then left Calder’s office.”

Judge Bone further found that on 27 February 1967, the plaintiff wrote the defendants a letter, received by them on 1 March 1967, stating that he was not in agreement with the amount charged by defendants for physical improvements, that he was selecting an appraiser, that he was calling upon the defendants to select one, and that by copy of the letter, he was-requesting the resident judge of superior court to appoint a third appraiser under the paragraph of the option numbered “Fourth.” On 1 March 1967, the male defendant wrote plaintiff a letter stating that the option had expired on 28 February 1967, and declining to appoint an appraiser. It was also found that the plaintiff had not tendered to defendants the $11,000.00 purchase price set out in the option or any amount of money for physical improvements placed on the land by the defendants, nor had the plaintiff committed himself unconditionally to pay the defendants the purchase price or such amount as appraisers might set as the value of such physical improvements.

Upon the facts found, Judge Bone concluded as a matter of law that the plaintiff had not complied with the terms of the option.

“An option is a unilateral agreement by which the maker grants the optionee the contractual right to accept or reject a present offer within a limited or reasonable time. It is unilateral because only the maker is bound; the other party is not obligated in any way to perform by purchasing. Because options are unilateral, they are construed strictly in favor of the maker. Ferguson v. Phillips, 268 N.C. 353, 150 S.E. 2d 518; Carpenter v. Carpenter, 213 N.C. 36, 195 S.E. 5.” Lentz v. Lentz, 5 N.C. App. 309, 168 S.E. 2d 437 (1969).

In 7 Strong, N. C. Index 2d, Vendor and Purchaser, pp. 492 and 493, it is said: to

Where an option specifies a definite tiijie for performance, it is not revocable during the time specified, and upon acceptance in accordance with its terms and conditions within that time it becomes an executory contract of bargain and sale. * * *”

See also, Byrd v. Freeman, 252 N.C. 724, 114 S.E. 2d 715 (1960).

In the ease before us, the option expired as of midnight on 28 February 1967. On 17 February 1967, the plaintiff had had tendered to him a deed for the property in question and demand had been made upon him for payment of the $11,000.00, plus $13,339.86 for physical improvements placed on the lands. Prior to midnight on 28 February 1967, the plaintiff had not accepted the deed tendered, had not paid the purchase price and had not asserted his ability or willingness to pay the purchase price demanded. In fact, his words and conduct at the time the deed was tendered to him on 17 February 1967 suggested an abandonment by him of his rights under the option. His belated suggestion regarding the appointment of appraisers was not received by the defendants until after the option had expired, and even then, insofar as is shown by this record, the plaintiff did not unconditionally assert his ability or willingness to pay such additional amount as might be appraised as the value of the improvements. The court found that the plaintiff had stated at the time the deed was tendered to him that, if the improvements were over $500, he would not be interested in buying the property.

Acceptance of an option must be in accordance with the terms thereof. Winders v. Kenan, 161 N.C. 628, 77 S.E. 687 (1913) ; Builders, Inc. v. Bridgers, 2 N.C. App. 662, 163 S.E. 2d 642 (1968). The general rule is that, absent special circumstances, time is of the essence in an option to purchase land and that acceptance and tender must be made within the time required by the option. Trust Co. v. Medford, 258 N.C. 146, 128 S.E. 2d 141 (1962) ; Douglass v. Brooks, 242 N.C. 178, 87 S.E. 2d 258 (1955).

By the terms of the option in the case before us, the purchase price was payable in cash upon delivery of the deed. In the event the parties could not agree as to the value of the physical improvements, appraisers would be appointed and act before the expiration of the option. It is clear from a reading of the terms of the option that time was of the essence because it is specifically provided therein that “(a)t any time within the period above limited, but not thereafter,” the defendants would make, execute and deliver a good and sufficient deed for the property upon the payment of the purchase price in cash. See Sheppard v. Andrews, 7 N.C. App. 517, 173 S.E. 2d 67 (1970).

We hold that the trial judge did not commit error when he found as a fact and concluded as a matter of law that the plaintiff did not comply with terms of the option.

The judgment is affirmed.

Affirmed.

Judges Campbell and Beock concur.