Horton v. Humble Oil & Refining Company , 255 N.C. 675 ( 1961 )

122 S.E.2d 716 (1961) 255 N.C. 675

Lester R. HORTON
v.
HUMBLE OIL & REFINING COMPANY, Jesse A. Kiser and G. G. Atkins.

No. 314.

Supreme Court of North Carolina.

November 22, 1961.

Jones, Reed & Griffin, Kinston, for plaintiff appellant.

Whitaker & Jeffress, Kinston, Lassiter, Moore & Van Allen, John T. Allred, Charlotte, for defendant appellee.

WINBORNE, Chief Justice.

The pivotal question presented on this appeal is this: Is there sufficient evidence, when viewed in the light most favorable to plaintiff, to establish the existence of a contract between plaintiff and the defendant Oil Company? The answer is No.

In Williamson v. Miller, 231 N.C. 722, 58 S.E.2d 743, 747, this Court said: "``To be binding, the terms of a contract must be definite and certain or capable of being made so.' Elks v. North State Ins. Co., supra; 159 N.C. 619, 75 S.E. 808; Sides v. Tidwell, 216 N.C. 480, 5 S.E.2d 316."

In Elks v. North State Ins. Co. [159 N.C. 619, 75 S.E. 810], this Court said: "It is elementary that it is necessary that the minds of the parties meet upon a definite proposition. ``There is no contract unless the parties thereto assent, and they must assent to the same thing, in the same sense. A contract requires the assent of the parties to an agreement, and this agreement must be obligatory, and, as we have seen, the obligation must, in general, be mutual.' 1 Pars. Cont., 475."

In the instant case, there is not sufficient evidence that the parties ever achieved a meeting of the minds upon the definite and certain terms of a contract. Plaintiff testified that the defendant Oil Company agreed to "fully equip" the filling station by the time that the plaintiff had returned from school, but there is neither sufficient evidence of what is generally meant by this term, nor evidence of what either party actually understood it to mean.

As to the financing of this equipment, plaintiff testified at one point that, "Payment for the small equipment was to be set up for 36 months, and heavy equipment could be set up on 48 months, and there would be a small down payment I would be billed for. That was the method of paying for the equipment to be furnished me by Standard Oil." At another point, however, plaintiff testified that an agent of defendant Oil Company took him to the Commercial Bank in Kinston to assist him in getting a loan which "was to be used to purchase additional equipment and stock, I reckon."

This and similar uncertainty revealed in the testimony relative to the other terms of the alleged contract indicate that the parties did not reach that meeting of the minds necessary to the formation of a binding contract.

However, there is evidence that the parties contemplated entering into a written contract. Plaintiff testified that a written lease for the filling station was given to him; that he kept it and read part of it; but that he did not sign it because "I was afraid to bind myself by signing a lease then."

In Elks v. North State Ins. Co., supra, it is said: "If the minds of the parties meet upon a proposition, which is sufficiently definite to be enforced, the contract is complete, although it is in the contemplation of the parties that it shall be reduced to writing as a memorial or evidence of the contract; but if it appears that the parties are merely negotiating to see if they can agree upon terms, and that the writing is to be the contract, then there is no contract until the writing is executed. Winn v. Bull, 7 Ch. D. 31; Pratt v. [Hudson] Railroad [Co.], 21 N.Y. [305] 308; Miss. Steam Co. v. Swift, 86 Me. 248, 29 A. 1063, 41 Am.St. 545 [553]; Rankin v. Mitchem, 141 N.C. 280, 53 S.E. 854."

Plaintiff lays stress upon the fact that he relied on the statements made by agents of defendant Oil Company as to the income that he would receive from the business. However, it appears that, under these circumstances, such statements amount to no more than what this Court has referred to as "sales talk" or "huffing". As was said in Pritchard v. Dailey, 168 N.C. 330, 84 S.E. 392, 393, "The representations of the defendant seem to be what are called ``promisory representations,' looking to the future as to what can be done to the property, how profitable it was, and how much could be made by the investment. Representations which merely amount to a statement of opinion go for nothing. One who relies on such affirmations made by a person whose interest might prompt him to invest the property with exaggerated value does so at his peril, and must take the consequences of his own imprudence. Cash Register Co. v. Townsend, 137 N.C. 652, 50 S.E. 306, 70 L.R.A. 349; Kerr on Fraud and Mistakes, p. 83."

Thus it appears that the court below was correct in allowing defendant's motion for judgment as of nonsuit. As this ruling is determinative of the case, it is unnecessary to discuss plaintiff's assignment of error relative to the measure of damage.

Hence, the judgment of the court below is

Affirmed.

DENNY, J., and PARKER, J., took no part in consideration or decision of this case.