Fletcher v. Jones

OF APPEALS COURT Fletcher v. Jones dissenting. Judge Wells I my timely

In was not made. opinion, defendant’s appeal re- with the to the respectfully disagree majority decision as 1A-1, of of Gen. Stat. Rule 58 of the Rules Civil quirements § appeal. Procedure and vote to dismiss the v. BURTON H. JONES CAROLISTA C. FLETCHER No. 831SC873 (Filed 1984) July Judges § judgment 1.1— out of court and out of district entry only judgment proper An of out of court out of district is where and permitted parties statute or where the consent. per- 2— for 2. Vendor and Purchaser contract for sale of land —reasonable time formance rule, general As a a contract for of land remains and the sale valid closing specifies the date unless the contract for a reasonable time after set for clearly expiration is of the What con- date or states that time essence. performance depends on the of the con- a time” for nature stitutes “reasonable tract, of and all relevant purpose and conduct other circumstances. per- § for and 2— contract for sale of land —reasonable time 3. Vendor Purchaser formance-question of fact and law for The issue whether a reasonable time has de- presents However, question of fact and law to be of a contract to sell land mixed simple, un- are of fact. where the facts case cided trier conclusion, presented one disputed the issue becomes and can lead to one judge. which of law be decided trial 2.3— contract sale of land —modification 4. Vendor and Purchaser for date written, of a promises extend the exchange An mutual binding upon the without further land was contract the sale of unilateral, However, statements vendor’s oral recitation of consideration. indicating continuing willingness the land as soon as his divorce second final to constitute a valid modification became were insufficient closing date. per- 2— of land —reasonable time contract for sale 5. Vendor Purchaser 8 formance-necessity conclusions for the of land must specific performance of a contract sale An action for adequate proceedings the trial court made no where be remanded for further concerning of fact or of law whether a reasonable time for conclusions agreed closing of the contract had between the date of 10 September attempted 24 March and when the vendor to terminate the con- tract. specific performance- 6. Vendor and Purchaser 5— contract for sale of land — development no entitlement to costs If it is determined that defendant vendor breached a contract for the sale land, plaintiff purchaser expenses not be entitled to recover incurred would perform- preparation develop obtaining specific in ance, in to to the land addition plaintiff specific performance compensation for since to award as well as development place plaintiff position in costs would a better than she would conveyed. occupied had defendant have Judge dissenting. Becton Stevens, by Judgment defendant from en- Judge.

APPEAL County 18 1983 in Dare Heard in Superior tered March Court. May 1984. Appeals the Court of a contract entered sought specific performance

Plaintiff August whereby agreed into on 18 defendant to sell to subject lots Head. The sale was to Nags three located plaintiff that defendant first obtain either a divorce from his the condition wife, to the sale. date was set for 9 Jan- Closing or her consent uary 1981. that following

In its the trial court found the judgment, signed. occurred after the contract was events and transactions the and defendant was Defendant’s wife refused execute deed Meanwhile, until 20 August unable to obtain a divorce a written addendum to the con- January parties signed tract, to 10 March 1981. Between 10 extending on several August plaintiff spoke March and plaintiff time defendant assured occasions and each that he intended to fulfill his con- would soon be final and divorce when had still not August On obligations. tractual attorney attorney and plaintiffs called taken place, was still to sell the land. Plaintiff willing indicated that defendant defendant notified September no action. On took returned he was the offer sell and by withdrawing letter $1,000.00 money him previously given in earnest attorney sent By September letter dated of trust attorney pur- an executed note and deed to defendant’s OF APPEALS COURT of the original suant the terms contract. The letter also con- $1,000.00 on downpayment tained the escrow check a however, Defendant refused to property. property, and thereafter filed a notice of lis pendens against brought land and suit for of the contract. specific performance sought damages making Plaintiff also she incurred the land. Defendant plans develop filed counterclaim dam- incurred reason of the cloud his title ages upon created of lis notice pendens. trial, non-jury

After a the trial court claim granted plaintiffs but denied both plain- tiffs and defendant’s claims for From the damages. grant spe- cific performance, appeals. cross-appeals Plaintiff from the trial court’s order her claim for denying damages. & W.

Aycock Spence, by Mark Spence, Pritchett, Burch, Pritchett, Jr., Cooke and W. W. by defendant.

WELLS, Judge. ^[1] We note at the outset judgment this case was January out of court and out of from 24 1983 entered district the County Superior entry term of Dare Such an of judgment Court. statute, or, here, is where where proper permitted as State, consent. Utilities Commission v. 243 89 parties N.C. (1955), denied, S.E. 2d 727 reh. 243 899 Defendant contends that the trial court in ordering erred contract, of the lapsed because it had either 26 September or been rescinded as of when at- the executed note and deed of trust to defend- tempted for performance ant. Plaintiff contends the time of the January on 29 4 August binding contract was extended and a existed on 26 September agreement

To determine whether a valid contract existed on Septem- 1981, we must examine the oc- legal ber effect events August between 1980 and 1981. Under the curring September August, executed on the land sale was to agreement closing conditioned, however, January 1981. The sale was on be held ability to obtain wife or her con a divorce from his sent to a deed date. This constitutes provision condition to the under precedent parties’ obligation perform . . . facts and precedent contract. “Conditions are those events, contract, to the of a valid occurring subsequently making that must there right per exist or occur before is a to immediate formance, duty . . .” 3A before there is a breach of contract Cor (1960 Morefield, bin on Contracts & 1971 Tire Co. v. Supp.), (1978).1 S.E. 2d 353 It is clear therefore that App. neither contract unless party obligated was under the perform the condition was met date. precedent ^[2] It is undisputed that as of 9 January 1981 the condition had not occurred and the not precedent required were but it does not follow that im perform, expired rule, mediately thereafter. As a for the general a contract sale for a time land remains valid reasonable after Adams, 631, 142 S.E. closing, Scarborough date set for v. 264 N.C. date, 2d 608 unless the contract or specifies expiration essence, Brooks, clearly Douglass states that time see 87 S.E. 2d 258 There is no nor do showing, time or specific contend that the essence that a date was set in the case at bar. What constitutes a expiration for performance depends upon “reasonable time” the nature of and conduct of the other purpose parties and all circumstances, Land, relevant United States v. Acres 969.46 (M.D.N.C.1974), N.C., aff’d, F. F. Cty., Chatham 386 793 535 Supp. (4th 1976) 2d 1251 reasonable time to exercise (defining option Cir. contract). Merritt, 64, 48 268 S.E. App. See also Rodin v. N.C. 2d (1980). 539, denied, 402, 301 274 disc. rev. S.E. 2d 226 N.C. ^[3] The issue of whether a reasonable time has normally by to be presents a mixed of fact and law decided question (1925). fact, Kimball, 169, 129 406 trier of Colt v. 190 N.C. S.E. simple, Where the facts of the case are and can lead undisputed conclusion, however, only to issue becomes one presented one may by judge. of law which be decided the trial Id. After a jurisdictions terminology 1. Some have abandoned the use of the “condition obscure, grounds precedent” subsequent” on the that such labels and “condition (Second) aid, analysis Con intent. See Restatement parties’ rather than (1981). tracts 224 § 435 reasonable time has elapsed, contract is will by terminable at other, either party, upon reasonable notice to the Fulghum Selma, (1953). 238 76 S.E. 2d 368 The problem before us thus becomes to determine what date the parties set for performance, as that is the date from which they had a reasonable time in which to perform under the con- tract.

[4] We turn first to the agreement executed by parties January 1981 purporting extend the closing date to 10 March 1981. Contract validly terms be modified where the modifica tion has the consent of all parties and is supported by adequate consideration. Corbin v. 23 Langdon, App. 208 S.E. 2d 251 (1974).Contracts for the sale land must be in writing, N.C. Gen. (1965), Stat. 22-2 and modifications of a land sale contract must § valid, Lowe, also be written to be see Westmoreland v. 225 N.C. 553, 35 S.E. 2d 613 The undisputed facts in the case at bar show that agreement of 29 January 1981 was in writing and mutually agreed by the upon parties. Although the cases con somewhat, flict authority there is our support position that an written, exchange of promises mutual to extend the duration of a contract for the sale of land is binding upon without consideration, Post, further recitation of Childress v. Trading 247 (1957), 100 S.E. 2d 17 Am. Jur. 2d Contracts Co., but see Tile and Marble Co. v. Construction 16 N.C. hold, therefore, App. We agreement executed on 29 January validly modified the contract and set 10 March as the new closing date. contends, however,

Plaintiff that defendant further modified virtue of his conversations with plaintiff between March and August indicating continuing willingness facts, the land as soon as his divorce became final. The court, as found the trial show these communications were oral and informal. There is no that either finding party intended modify the terms of the existing or that the parties exchanged mutual or promises other consideration. Under these circumstances, unilateral, we hold that defendant’s oral state- ments were insufficient to constitute a valid modification of the v. Jones

Fletcher final, agreement between closing date.2 The the par- on 10 March 1981 and closing thus for provided obligations to fulfill their had a reasonable time thereafter ties the contract. under

[5] Nevertheless, defendant’s conversations with con intent as to time parties’ stitute some evidence to the whether de question are thus relevant and performance closing time after the March within a reasonable fendant acted undisputed case before us are the facts Although date. conclu inevitably single lead to a relatively they do not simple, when time had whether a reasonable concerning sion The question the contract. to terminate attempted fact, the cir considering all the trier of therefore one Kimball, case, The trial court supra. Colt v. cumstances of the between the of time concerning passage of fact findings made termination, but and the time March of law concern of fact or conclusions no adequate made trial Because the elapsed. time had whether a reasonable ing to the facts standard proper legal apply court failed for further must be remanded the case judgment, its reaching with this opinion. consistent proceedings ^[6] We turn now to cross appeal $40,400.00 in sale contract. upon in reliance land incurred damages special cases, in addition to may be awarded special In certain in the same necessary to place purchaser if if breach occurred. See occupied would have no he or she position Hill, 71 Am. 2d 54 S.E. 440 Jur. v. Winders us, cer incurred In case before Damages § the land develop preparations result of her as a expenses tain were incurred While these to the sales contract. subject to defend- they are not attributable upon in reliance orally requests an a seller who points been held that out that it has 2. Plaintiff the con- not later avoid a land sale contract date under extension Frauds, under the Statute by contending is void the oral modification tract Noles, of Johnson has been The rule v. 31 S.E. 2d Johnson however, limited, charged requested the extension party to be in which the to cases Linker, benefit, Harvey solely granted for his it was (1946). us, extending appears that both discussed it In the case before would benefit and that the modification under time for plaintiff and defendant. both APPEALS COURT OF Fletcher v. Jones breach, any. if ant’s These are would have conveyed had defendant his land to To award incurred as well as for her plaintiff specific performance compensation costs would be to her in a better than development place position hold, occupied conveyed. she would have fore, had defendant We there- even if the trier of fact determines on remand that contract, breached the special defendant claim must be denied. in part Affirmed and remanded. concurs.

Judge Johnson

Judge Becton dissents.

Judge dissenting. Becton and that

Believing that defendant breached I dissent. specific performance, Harvey is entitled (1946) Linker, 40 S.E. does not limit the ap- 2d (1944) Noles, of Johnson v. plication charged in which the to be the exten- party requested “to cases benefit,” solely it was for his as granted suggested sion and contrary, did Harvey in n. On the Court majority supra. oral extension of the time for enforceability rule on the not mutually parties. beneficial to the Johnson which performance, judice. the case sub controls dealing Johnson as a case Harvey distinguished

The decision under of the time for solely performance with the oral extension . . . when “the extensions were of an option the terms to be for the accommodation request at Johnson, 712, 40 S.E. 2d at 203. In at charged.” orally perform- to extend the time agreed sellers by failing good breaching to avoid ance sellers, the defendant permit refused Supreme title. Our Court Frauds, after the Statute of charged, to be to assert The from the oral modification. they had and benefited requested There, the plaintiff different. Harvey significantly are facts of the time for orally an extension buyers negotiated decided Harvey in the The Court purchase price. a reduction arid purchase the case on the basis of the oral modification of the alone. The Court declined to enforce modification price the con- price, because it dealt with an essential term of purchase tract, solely for of the and had been made the benefit price, charged, than the to be as in Johnson. plaintiffs, rather of the The silence on the issue oral modification Harvey Court’s 8A leaves Johnson See performance unimpaired. time 4455, Thompson, at Property G. Real § in comparable The in the case are to those judice facts sub seller to title good Johnson. Defendant was unable original contract and the written extension. expiration date orally 10 March Defendant continued to assure between plaintiff, 1981, that he intended fulfill his contractual August assurances, Plaintiff, in- in on defendant’s obligations. reliance develop Clearly curred substantial the land. plans agreements his written and oral to extend defendant benefited time; loss He permit- he avoided the of a sale. should not be now to the Statute of Frauds to commit a fraud on the ted assert extensions of the time are His oral valid, despite the Statute of Frauds. I now how On long decide the contract remained in effect. attorney plaintiffs attorney informed August defendant’s finally had obtained a divorce and settle- property that defendant wife, from the con- precedent fulfilling ment condition attorney ready stated that was tract. Defendant’s to the terms of the contract. No according original close was time. On 24 at- September date set at that torney attorney letter from declaring received a majority, generally stated “a contract for void. As for a the sale of valid and reasonable time land remains omitted], the con- after the set for unless date [citation clearly or time is of expiration tract an date states that specifies termination at the will, Unilateral of the contract p. essence.” Supra, only party, possible notice to the other upon reasonable Selma, closing. Fulghum Town reasonable time after See judice, sub In the case the contract 76 S.E. 2d or state that was of the specify expiration did not time extensions, and, had in the oral no date been set clos- essence therefore, Septem- not effect ing; unilaterally will then. but it could not be terminated at ber

Largent v. Acuff By unilaterally it will on 24 terminating at September defendant breached the is entitled to plaintiff specific performance.

To the extent not have made whole, may have erred in failing the trial court to award Farnsworth, 12.5, E. Contracts at 825-26 damages. See (1982). This, however, we cannot determine since the trial court failed to I findings make of fact on the issue. would re- mand for further of fact. HOSPITAL,

CHARLES HAROLD LARGENT v. CALVIN C. ACUFF and GRACE INC. No. 8325SC211 (Filed 1984) July Physicians, Surgeons, malpractice expert 1. and Allied Professions 15.1— tes- — timony malpractice In action for medical there was no merit to defendant’s an sufficiently testimony expert of contention that a medical witness was not specific jury speculate for the to do more than as to the causation of quite likely patient paralysis, that “it is that the since the witness testified likely may permanent damage,” quite pa- have less and “it is that the suffered permanent damage had less than turned out to

tient indeed have he likely” surgery, “quite if the witness’s use of have” he had had earlier “may.” stronger than if he had used the word made statement malpractice damages— Physicians, Surgeons, 21— 2. and Allied Professions 8 — certainty reasonable malpractice to defendant’s contention in a medical ac- There was no merit certainty prove damages enough with tion that did not the amount award, paralyzed support since there was evidence that was fall; paralysis evidence that the could have been ameliorated there was also fall; immediately procedures performed after the if certain medical had been part prove precision what and it was difficult to with procedures. to take the caused failure malpractice Physicians, Surgeons, and Allied Professions 20.2—8 —defendant’s prejudicial improperly contentions error stated — jury charge malpractice case in its The trial court in a medical erred respect diagnosis misstating with to his and treatment defendant’s contention prop- that his be plaintiff, it was crucial to defendant’s case contention

Case Details

Case Name: Fletcher v. Jones

Court Name: Court of Appeals of North Carolina

Date Published: Jul 3, 1984

Citation: 317 S.E.2d 411

Docket Number: 831SC873

Court Abbreviation: N.C. Ct. App.