Executive Leasing Associates, Inc. v. Rowland , 30 N.C. App. 590 ( 1976 )

227 S.E.2d 642 (1976) 30 N.C. App. 590

EXECUTIVE LEASING ASSOCIATES, INC.
v.
Bill I. ROWLAND et al.

No. 7610SC7.

Court of Appeals of North Carolina.

September 1, 1976.

Hatch, Little, Bunn, Jones, Few & Berry by John N. McClain, Jr., Raleigh, for plaintiff-appellant.

Purrington, Hatch & Purrington by Ashmead P. Pipkin, Raleigh, for defendants-appellees.

CLARK, Judge.

The issue presented upon appeal is whether the trial court erred in granting defendants' motion for summary judgment.

G.S. 1A-1, Rule 56 provides for a summary judgment if there is no genuine issue as to any material fact and if any party is entitled to judgment as a matter of law.

Summary judgment is a drastic remedy, and its requirements must be carefully observed in order that no person be deprived of a trial on a genuinely disputed issue. The party moving for a summary judgment has the burden of establishing the lack of a triable issue of material fact by the record properly before the court. This is so irrespective of the burden of proof at trial upon the issues raised in the pleadings. The movant's papers are carefully scrutinized while those of the opposing party are indulgently regarded. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Miller v. Snipes, 12 N.C. App. 342, 183 S.E.2d 270 (1971), cert. denied 279 N.C. 619, 184 S.E.2d 883 (1971).

The trial court held as a matter of law that there was no contract between the parties because there had been no acceptance of defendants' offer. An acceptance is an essential element of a contract because it manifests the offeree's intent to be bound by the terms of the offer. Intention is the key element. A written signature is not the exclusive means of signifying acceptance. Acceptance, unless otherwise specified, may be communicated by any means sufficient to manifest intent. This may include a signature, silence, or conduct. Foundation, Inc. v. Basnight, 4 N.C.App. 652, 167 S.E.2d 486 (1969).

The burden on the party moving for summary judgment may be carried by proving that an essential element of the opposing party's claim is non-existent. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Defendants here have contended that there was no acceptance of their offers as a matter of law. This contention cannot be sustained for two reasons.

The evidence before the trial court presented two modes of acceptance sufficient to deny defendants' motion. First, the copies of the lease forms attached to the complaint and to plaintiff's request for admissions show an entry of date of approval, which may constitute an acceptance by signature. Defendants point out that there was no evidence that plaintiff made the entry, but at the least, this raises a genuine issue of material fact.

Second, it is clear from the record that on the date of their answer and at times prior thereto, defendants were in possession of the equipment referred to in the eight lease offers. The conduct of the plaintiff in delivering to defendants the equipment which was the subject of the leases and in permitting defendants to use the same over an extended period may constitute acceptance of the lease offers. Acceptance by conduct is a well-recognized principle in North Carolina law. Durant v. Powell, 215 N.C. 628, 2 S.E.2d 884 (1939); May v. Menzies, 184 N.C. 150, 113 S.E. 593 (1922). See also Performance Motors, Inc. v. Allen, 280 N.C. 385, 186 S.E.2d 161 (1972). While such conduct may not amount to an acceptance as a matter of law, it is certainly sufficient to make improvident any ruling that there has been no acceptance as a matter of law.

A third possible mode of acceptance is by signature of plaintiff or an authorized agent of plaintiff. The record upon appeal is unclear as to whether any genuine issue exists with respect to signatures on the original copies of the lease forms. Plaintiff may be able to clarify this issue upon remand. At any rate, such a finding is not essential to our disposition of the case.

We hold that summary judgment was improvidently granted.

The judgment is reversed.

BROCK, C. J., and HEDRICK, J., concur.