Kidd v. Early, 23 N.C. App. 129

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23 N.C. App. 129 | N.C. Ct. App. | 1974

Lead Opinion

HEDRICK, Judge.

Plaintiffs contend that the court erred in denying their motion for a summary judgment and in entering summary judgment for the defendants. While the record, in our opinion, clearly demonstrates that there are genuine issues of material fact, summary judgment for the defendants was proper if the contract sued on is so indefinite in its terms as not to satisfy the requirements of G.S. 22-2, the statute of frauds, which in pertinent part provides:

“All contracts to sell or convey any lands . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.”

It is generally recognized in this jurisdiction “ . . .that a deed conveying land, or a contract to sell or convey land, or a *134memorandum thereof, within the meaning of the statute of frauds, G.S., 22-2, must contain a description of the land, the subject matter thereof, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed, contract or memorandum refers.” Searcy v. Logan, 226 N.C. 562, 565, 39 S.E. 2d 593, 595 (1946).

The inquiry that is to be made with reference to the description of the land is whether it contains a patent ambiguity. “There is a patent ambiguity when the terms of the writing leaves the subject of the contract, the land, in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified with certainty.” Lane v. Coe, 262 N.C. 8, 13, 136 S.E. 2d 269, 273 (1964) (citations omitted). Parol evidence is not permitted to aid the description if there is a patent ambiguity. Lane v. Coe, supra; Powell v. Mills, 237 N.C. 582, 75 S.E. 2d 759 (1953).

“A description is said to be latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made.” Lane v. Coe, supra at 13. Where there is a latent ambiguity in the description of the land, parol and other evidence is permitted to show that the extrinsic matter fits the description to the land. Lane v. Coe, supra; Gilbert v. Wright, 195 N.C. 165, 141 S.E. 577 (1928).

In the instant case, the option clearly refers to “200 acres more or less of the C. F. Early farm. To be determined by new survey furnished by sellers.” We are of the opinion that the description of the land which is the subject of the option is insufficient in itself but that reference in the option to a survey to be provided by seller makes the ambiguity of the description latent rather than patent. Identification of the property may be determined with certainty from the survey referred to in the option. Thus, since the ambiguity in the instant case is latent, parol and other evidence is admissible to fit the description to the land.

The second issue to be considered is whether the option fails to meet the requirements of the statute of frauds in that it does not contain all the essential terms of the agreement. The defendants assert that because the option is silent as to the terms of purchase, the agreement cannot be enforced. We do not agree.

*135We recognize that before a written memorandum can satisfy the statute of frauds “it must contain expressly or by necessary implication the essential features of an agreement to sell.” Lane v. Coe, supra at 12 (citations omitted). This court in Yaggy v. B.V.D. Co., 7 N.C. App. 590, 600, 173 S.E. 2d 496, 503 (1970), cert. denied, 276 N.C. 728 (1970), stated that the essential elements of the contract were set forth where the instrument “clearly identif [ied] the vendor, the vendee, the purchase price, and . . . the property sold.” The court then held that a memorandum will not fail merely because the time for performance (i.e., the closing date and the date possession of the property was to change hands) was not set forth in the memorandum. Rather, the court held that the law will imply that the contract is to be performed within a reasonable time.

Likewise, we are of the opinion that, at least where the memorandum does not provide for the determination of the manner of payment at some time in the future and gives no indication that the parties considered installment terms, payment in cash would be implied by law. See 49 Am. Jur., Statute of Frauds, § 355, p. 666. In the instant case the option clearly identifies the vendors, the vendees, states that the purchase price of the 200 acres is $600 per acre and, as discussed above, sufficiently identifies the property to be sold. Consequently, we feel that the essential elements of the contract have been set forth in the option and that whether there was a meeting of the minds on the terms of the contract is a question for the jury.

Therefore, since the record clearly demonstrates that there are genuine issues of material fact to be determined at trial and since the option sued on is sufficiently definite in its terms to satisfy the requirements of the statute of frauds, we are of the opinion that the trial court correctly denied the plaintiffs’ motion for summary judgment and erred in entering summary judgment for defendants.

The order appealed from is

Affirmed in part; Reversed in part.

Judge Baley concurs. Judge Bbitt dissents.

Dissenting Opinion

Judge Britt,

dissenting. In my opinion the description of the land set forth in the purported option was not sufficient to survive the statute of frauds. I vote to affirm the judgment appealed from.