341 S.E.2d 113 | N.C. Ct. App. | 1986
PEE DEE OIL COMPANY
v.
QUALITY OIL COMPANY, INC., t/a Swink-Quality Oil Company, and James H. Pou Bailey, Jr.
Court of Appeals of North Carolina.
*115 Taylor and Bower by H.P. Taylor, Jr., Wadesboro, for plaintiff-appellant.
Etheridge, Moser and Garner by Kennieth S. Etheridge and Terry R. Garner, Laurinburg, for defendants-appellees.
PHILLIPS, Judge.
The directed verdict as to plaintiff's claim for breach of a written contract, the main claim asserted, was clearly erroneousthough why the trial judge directed a verdict rather than arrive at one is beyond our comprehension. Be that as it may, there was plenary evidence before the court that the defendant company had a written contract to purchase certain assets of the plaintiff, that it refused to go through with the purchase, and that plaintiff was damaged thereby. That defendant company did not sign the asset purchase contract, which was prepared at its direction, is not decisive, for a written contract can consist of several writings. Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545 (1965). The 27 October 1982 letter, which defendant did sign, can only be interpreted as an offer to buy the assets referred to except the equipment for $215,000, and to pay the reasonable market value for the equipment; and the evidence tends to show that plaintiff accepted that offer, first by notifying defendant orally and then by signing the written contract defendant had prepared, which essentially duplicated the terms contained in defendant's offer. The defendant's contention that the 27 October letter was too vague to be the basis for a contract because the price of the equipment was not set has no merit. The equipment was but a minor, incidental part of the purchase and contracts do not fail because minor details are *116 left for future determination. Hurdle v. White, 34 N.C.App. 644, 239 S.E.2d 589 (1977). Nor, as the defendants contend, is the claim barred as a matter of law either by the statute of frauds or because plaintiff failed to meet a condition precedent to closing the transaction, by obtaining the written approval of Shell Oil Company and the lessors to the transfer of the franchise and leases to defendant. If the parties did enter into a written contract, as plaintiff's evidence tends to show, the statute of frauds, G.S. 22-2, G.S. 25-2-201, is no stumbling block, because each party signed a writing that meets the requirements of those statutes. And if defendant had already repudiated the contract, as plaintiff's evidence tends to show, that relieved plaintiff of the necessity of complying with the conditions precedent before demanding compliance by the defendant; for the law does not require the doing of vain things. Pappas v. Crist, 223 N.C. 265, 25 S.E.2d 850 (1943). It is enough that plaintiff's evidence tends to show that it could have performed the contract if defendant had not repudiated it; it was not required to show that it had performed. Thus, this cause of action is returned to the Superior Court for a new trial thereon.
But the verdicts directed against plaintiff's other claims are not shown to be erroneous and we affirm them. The punitive damages claim and the implied contract claim, neither of which are mentioned in plaintiff's brief, have been abandoned under the provisions of Rule 28, N.C. Rules of Appellate Procedure. And the evidence presented does not support either the unfair trade practices claim or the claim against defendant Bailey for maliciously interfering with plaintiff's contract rights.
The judgment dismissing plaintiff's first cause of action for breach of a written contract is vacated. The judgment dismissing plaintiff's second, third, fourth and fifth causes of action is affirmed.
Vacated in part; affirmed in part.
WEBB and JOHNSON, JJ., concur.
