Suitt Construction Co. v. Seaman's Bank for Savings , 30 N.C. App. 155 ( 1976 )

226 S.E.2d 408 (1976) 30 N.C. App. 155

SUITT CONSTRUCTION CO., INC., et al.
v.
The SEAMAN'S BANK FOR SAVINGS and First Union National Bank of North Carolina.

No. 7626SC198.

Court of Appeals of North Carolina.

July 21, 1976.

DeLaney, Millette, DeArmon & McKnight, P. A., by Ernest S. DeLaney, Jr., and Ernest S. DeLaney, III, Charlotte, for plaintiff-appellant.

Smith, Anderson, Blount & Mitchell by John L. Jernigan, Raleigh, for defendant-appellee.

BRITT, Judge.

Plaintiffs contend that North Carolina law is applicable to the contract in question and that under the law of this State summary judgment in favor of defendants was not proper.

First, plaintiffs argue that the agreement was executed in Charlotte and was to be performed in that city. With respect to performance, plaintiffs insist that the construction of the apartment complex was the "thing to be performed" and the general rule is that the law of the place of performance applies. While we agree with plaintiffs as to this rule of law, we cannot agree that the primary object of the agreement was the construction of the apartment complex. We hold that the proposed loan from defendant Seaman's to plaintiffs was the primary object.

We agree with plaintiffs that this jurisdiction follows the general rule that the validity and construction of a contract are to be determined by the law of the place where the contract is made. Davis v. Davis, 269 N.C. 120, 152 S.E.2d 306 (1967), and cases therein cited. Our Supreme Court has also held that the place at which the last act was done by either of the parties essential to a meeting of the minds determines the place where the contract was made. Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507 (1967), and cases therein cited.

Plaintiffs argue that the agreement was prepared and signed by defendant Seaman's in New York after which it was mailed to plaintiffs in Charlotte; that on 14 March 1973 officials of Colwick signed an approval and acceptance of the agreement and returned it by mail to defendant Seaman's; that this was the last act done essential to a meeting of the minds, therefore, North Carolina law became applicable.

We do not find plaintiffs' argument persuasive. The closing paragraph of the agreement, which is in the form of a letter, reads as follows:

"This Bank agrees to hold the above offer open until Friday, March 16, 1973. If acceptance of the above terms and conditions has not been indicated by the borrower signing and the receipt by us in New York of the enclosed green copy of this letter, and the enclosed authorization for title search, together with the borrower's corporate check to our order, in the amount of $35,000, representing the non-refundable commitment fee and a similar check or Letter of Credit, in the amount of $70,000, representing the security deposit, on or before that date, this offer will be considered null and void." (Emphasis ours.)

We think the receipt by defendant Seaman's in New York, on or before 16 March 1973, of the signed acceptance by Colwick and the other documents above mentioned constituted the last act essential to the meeting of the minds, thereby making application of New York law proper in determining the validity of the contract. See, e. g., A. Ehrenzweig, Conflict of Laws §§ 176, 194 (1962); Kossick v. United Fruit Co., 365 U.S. 731, 81 S. Ct. 886, 6 L. Ed. 2d 56 (1961), rehearing denied, 366 U.S. 941, 81 S. Ct. 1657, 6 L. Ed. 2d 852 (1961).

It appears that the New York appellate courts have followed the rule adopted by several other jurisdictions upholding and enforcing the standby fee contained in a loan commitment as liquidated damages or as consideration for the commitment, and have rejected the contention that these charges are unenforceable penalties. See Boston Road Shopping Center, Inc. v. Teachers Insurance and Annuity Assoc., 13 App.Div.2d 106, 213 N.Y.S.2d 522 (1961), aff'd, 11 N.Y.2d 831, 227 N.Y.S.2d 444, 182 N.E.2d 116 (1962), motion for reargument denied, 11 N.Y.2d 1064, 230 N.Y.S.2d 1026 (1962).

For cases from other jurisdictions that apparently have followed the rule, see: Shel-Al Corporation v. American National Insurance Co., 492 F.2d 87 (5th Cir. 1974); White Lakes Shopping Center, Inc. v. Jefferson Standard Life Insurance Company, 208 Kan. 121, 490 P.2d 609 (1970); Goldman v. Connecticut General Life Insurance Company, 251 Md. 575, 248 A.2d 154 (1968); Regional Enterprises, Inc. v. Teachers Ins. and Annuity Ass'n, 352 F.2d 768 (9th Cir. 1965); and Continental Assurance Co. v. Van Cleve Bldg. & Constr. Co., 260 S.W.2d 319 (Mo.App.1953).

For the reasons stated, the judgment appealed from is

Affirmed.

BROCK, C. J., and MORRIS, J., concur.