117 S.E. 3 | N.C. | 1923
Civil action to recover against defendant for rentals and damages for breach of contract shown forth in evidence as follows:
GREENSBORO, N.C. 25 October, 1919.
Memorandum of agreement between J. P. Sanders and W. E. Hackett, called the lessees, and Summitt Avenue Building Company, called the lessors.
The lessees agree to form a hotel company, to be known as the North Carolina Hotel Exchange Company, within ten days from this date.
That lessors agree to lease to said hotel company all that lot and parcel of land in Greensboro, N.C. at the southwest corner of Greene and Washington streets, being about 113.30 feet on the south side of Washington Street and 125 feet on the west side of Greene Street, for a period of eight years, at an annual rental of $6,000 payable in advance 1 January of each year, beginning 1 January, 1920. First payment to be made by promissory note of said lessees and their associates, payable 1 July, 1920, with interest at 6 per cent from 1 January, 1920, lease to provide that hotel company, which is the lessee therein, shall have the option at the beginning of the ninth year to purchase said property and hotel thereon for $8,775, payable 1 January, 1928. This option to be exercised at any time after 1 January, 1927, and is conditional on all the terms and conditions of this contract and lease to hotel company being fully performed and complied with.
It is an essential part of this agreement and to be a condition of said lease, that the lessees of said hotel company, cause to (330) be erected on said premises a hotel of in the neighborhood of 200 rooms and to cost approximately $350,000, or more, for the building, and to furnish same with furniture equipment to cost approximately $100,000.
The note referred to is to stand as security for the starting of the erection of said hotel on or before 1 July, 1920, and in event of failure to start erection of hotel within that time, this agreement and lease thereunder to be and become null and void, but said note, nevertheless, to be paid by the makers thereof to the Summitt Avenue Building Company.
It is understood and agreed that a formal lease is to be executed by the Summitt Avenue Building Company to the hotel company embodying the above terms and conditions, and further containing covenants by the lessees to pay all State, county, municipal or other taxes or assessments against said property or assessments for paving streets or sidewalks *348 adjacent thereto. Said property shall not be used during continuance of lease for any other purpose other than hotel purposes, except it may have a barber shop or other stores in hotel building, and in order to entitle the lessees to exercise option and purchase said property at end of the eight years, the hotel, as hereinabove specified, must be fully built and completed during the period of lease.
There was evidence on part of plaintiff tending to establish breach and damages.
Defendant in the pleadings denied that said paper-writing had ever become a contract between the parties, and offered evidence tending to show that the same had been signed and delivered only on condition that it would not become operative or binding on the parties unless within ten days they could interest certain designated men of means in the undertaking. That defendant, after making diligent effort, failed to procure the interest or aid of the persons named, and that the contract had therefore never become a binding agreement.
The cause was submitted on the following issues:
1. Was the memorandum of agreement signed and delivered upon the condition that it was not to become a binding contract unless the defendants secured the financial assistance of Mr. Gresham and others associated?
2. Is the defendant indebted to the plaintiff, and if so, in what amount?
The court having admitted the evidence of defendant to the effect above stated, ruled that same was not competent to vary the contract as written and charged the jury that if they should believe the evidence admitted as competent, they should answer the issues for plaintiff. Verdict and judgment for plaintiff and defendant excepted and appealed.
It appears that on a former trial of the cause, defendants (331) admitting the execution and existence of the contract sued on, had pled by way of defense and offered evidence tending to show that there was a contemporaneous oral agreement and by virtue of which defendants were to be released of the obligation of the written agreement if they failed in interesting certain designated persons in the enterprise within ten days from its date. This claim having been established, there was judgment for defendants which on appeal was set aside, the Court being of opinion that the parol evidence on which the defense was based was incompetent as being in conflict with the *349
terms of the written agreement. See Building Company v. Sanders,
New trial.
Cited: Overall Co. v. Hollister Co.,