Plaintiff, Plato S. Rhyne, Jr., appeals from the grant of a motion to strike all three counts of his petition and the consequent dismissal of his complaint. We agree that the trial court was in error and reverse.
Rhyne contracted to purchase the home of Ramona Garfield for $90,000.00 on July 13, 1975. The covenants included a clause requiring the seller to furnish a "termite letter” and provided for payment of $1,000 earnest money and $8,000 in cash at closing, for the assumption of a $72,000 particularly described mortgage, and for the remaining $10,000 to be paid either in cash or pursuant to a five-year note to the seller. The terms of this note, as provided in the contract, were either "five equal annual payments, plus accrued interest of 8%,” or "seller to accept $1,000 — plus accrued interest the first year in lieu of the five equal payments, the balance to be paid in four equal payments plus accrued interest. First payment becoming due on September 1, 1976.” There was no acceleration clause, nor were there provisions to secure the note in the contract.
On August 1, 1975, the closing date, the seller refused to consummate the sale. Rhyne thereafter brought this suit in three counts for specific performance and for damages for his loss of bargain. Garfield answered and filed her motion to strike Rhyne’s claims because the contract was too vague and indefinite to be enforceable. The trial court granted her motion and dismissed the complaint.
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The standard to be applied to a motion to strike is the same as that on a motion for failure to state a claim upon which relief can be granted.
Potpourri of Merrick v. Gay Gibson,
Garfield’s contention that the requirement of a "termite letter” rendered the contract too vague and indefinite to be enforceable is without merit. This term’s meaning and the contractors’ intentions are issues of fact to be determined by the trial court. We cannot say, applying the
Dillingham
standard, that the plaintiff cannot show by any set of facts what the parties had in mind. Code Ann. § 20-702;
Paul v. Paul,
Similarly, the trial court erred in holding that the payment plan set out in the contract was unenforceable as a matter of law. There is nothing inherently vague or improper in providing for alternative forms of payment in a contract to sell realty as long as each alternative is sufficiently definite to be enforced.
Horner v. Savannah Valley Enterprises,
Furthermore, there is no requirement that a note must include an acceleration clause or that a note must be secured.
Chewning v. Brand,
supra, reversing
Morris v. Yates,
The trial court erred in granting Garfield’s motions to strike and dismissing the complaint.
Judgment reversed.