Summary
concluding because "[t]he uncontroverted forecast of evidence . . . establishes that defendant manifested an intent that the alleged agreement was not to be binding unless his wife became a party by agreeing to it, and that his wife refused to sign and become a party. . . . I would hold that the plaintiffs cannot enforce the alleged agreement"
Summary of this case from Parker v. GlossonOpinion
No. 8510SC1268
Filed 17 June 1986
Contracts 2.4; Vendor and Purchaser 1 — contract to convey realty — no mutuality of obligation Where a vendor could not have delivered a warranty deed conveying fee simple marketable title as required by the contract to convey realty because his wife refused to sign the deed, the vendor could not have enforced the contract against the purchasers; therefore there was no mutuality of obligation and the purchasers could not enforce the contract against the vendor.
APPEAL by plaintiffs from Read, Judge. Judgment entered 10 June 1985 in Superior Court, WAKE County. Heard in the Court of Appeals 6 May 1986.
William A. Bason, for plaintiff appellants.
Howard, Howard, Morelock From, P.A., by Fred M. Morelock and John N. Hutson, Jr., for defendant appellees.
Judge WHICHARD concurs in the result.
Judge JOHNSON concurs in the result and joins in the concurring opinion.
This is an action for breach of contract. The defendants moved for summary judgment and the pleadings and materials introduced in opposition to and in support of the motion for summary judgment showed that the following matters are not in dispute. On 7 January 1985 an "offer to purchase and contract" was signed by the defendant William L. Thompson and WH G Realty, Inc. WH G Realty was not an extant corporation but the plaintiffs intended to organize such a corporation to take the title to a tract of real estate which was the subject of the contract.
Under the terms of the contract the defendant William L. Thompson agreed to convey a tract of real estate in Durham County to the WH G Realty, Inc. for $70,000.00. William L. Thompson owned the real property and it was agreed by the parties that he would take the contract home to be signed by his wife that night. The plaintiffs at that time delivered to Mr. Thompson a check for $500.00. On the night of 7 January 1985 William L. Thompson called one of the plaintiffs and told him his wife would not sign the contract unless the price was raised to $75,000.00. The plaintiffs agreed to this price. It was agreed that the parties would meet at Mr. Thompson's office the next morning and change the contract to reflect the new price. The next day Mr. Thompson advised the plaintiffs that he had been offered $84,600.00 for the property and returned the check for $500.00. William L. Thompson agreed to give the plaintiffs a chance to meet any offer which was made for the property. The property was sold to a third party before the plaintiffs could meet the third party's offer.
The court granted the motion for summary judgment in favor of both defendants and the plaintiffs appealed.
The pleadings and the papers filed in support of and in opposition to the motion for summary judgment do not contain any evidence that William L. Thompson was acting as agent for his wife at the time he signed the contract to sell the property. Summary judgment was properly entered on the claim against her. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). The plaintiffs argue that there was evidence that William L. Thompson approached Daniel C. Lynn and offered him $5,000.00 if he would sell the property, that the property was not owned by the defendants as tenants by the entirety but was wholly owned by the defendant William L. Thompson, and that he was selling the property because his wife wanted a double wide mobile home. The plaintiffs argue that this is evidence from which a jury could conclude William L. Thompson was acting for his wife. We do not believe this is evidence sufficient to submit to a jury on the question of agency. This is particularly true when all the evidence shows the parties agreed Mr. Thompson would take the contract home to be signed by his wife. The marital relationship does not raise a presumption that the husband is acting as an agent for his wife. Albertson v. Jones, 42 N.C. App. 716, 257 S.E.2d 656 (1979).
Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68 (1974) and Lawing v. Jaynes, 20 N.C. App. 528, 202 S.E.2d 334, modified, 285 N.C. 418, 206 S.E.2d 162 (1974), relied on by the plaintiffs, are not helpful to them. Reichler deals with a question of judgment on the pleadings. The plaintiff had pled that the wife was bound by the contract and this Court held the plaintiff had the right to prove the husband was acting as her agent. In this case we deal with a motion for summary judgment. The parties have forecast what the evidence will be. In Lawing this Court held that the superior court had not made findings of fact sufficient to determine whether a husband was acting for his wife. This Court made some statements as to evidence which would prove agency, which statements are not inconsistent with our decision in this case.
One of the terms of the alleged contract provided that William L. Thompson deliver to the plaintiffs a general warranty deed which would contain a fee simple marketable title. Without the signature of his wife Mr. Thompson could not have delivered such a deed. The plaintiffs would not have been liable on the contract if Mr. Thompson had sued them. There was not a mutuality of obligation. The Restatement (Second) of Contracts 79 (1981) says that if the requirement of consideration is met there is no additional requirement of mutuality of obligation. It justifies this rule by saying that the value of a promise is not necessarily affected by the fact that no legal remedy will be available in the event of a breach. We have not been able to find a case in North Carolina dealing with the precise question of whether an agreement which may not be enforceable against one party may nevertheless be enforced against the other. We believe there are cases which assume that such contracts are not enforceable against either party. See Wellington-Sears Co. v. Dize Awning Tent Co., 196 N.C. 748, 147 S.E. 13 (1929); Rankin v. Mitchem, 141 N.C. 277, 53 S.E. 854 (1906); and Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410, cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974). In Rankin the Court held that a promise was not enforceable because both sides were not bound by it. The Court said, "[i]n order to make an agreement valid and binding, the promises must be mutual, . . . ." 141 N.C. at 283, 53 S.E. at 856. In Wellington the Court recognized the principle that there must be mutuality of obligation but held that in that case there was sufficient consideration because there were promises enforceable against the plaintiff. In Mezzanotte it was held there was a mutuality of obligation. We believe we are bound by these cases to hold that because the defendant William L. Thompson could not have enforced the contract against the plaintiffs, the plaintiffs cannot enforce the contract against William L. Thompson. It was not error to grant the motion for summary judgment in favor of William L. Thompson.
Affirmed.
Judge WHICHARD concurs in the result.
Judge JOHNSON concurs in the result and joins in the concurring opinion.