Gregory v. Perdue, Inc. , 47 N.C. App. 655 ( 1980 )

267 S.E.2d 584 (1980)

Quentin GREGORY, Jr.
v.
PERDUE, INCORPORATED.

No. 796SC998.

Court of Appeals of North Carolina.

July 15, 1980.

Allsbrook, Benton, Knott, Cranford & Whitaker by William O. White, Jr., Roanoke Rapids, for plaintiff-appellant.

Pritchett, Cooke & Burch by Stephen R. Burch and Jonas M. Yates, Windsor, for defendant-appellee.

WELLS, Judge.

On motion for summary judgment, the question before the court is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c); Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). The burden upon the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972). This burden may be carried by a movant by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce enough evidence to support an essential element of his claim. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Moore v. Fieldcrest Mills, Inc., supra; Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).

We now determine the propriety of summary judgment for defendant in this case by applying these principles to the record before us. The forecast of plaintiff's evidence must be gleaned from his verified complaint and his deposition, as he submitted no other papers in opposition to defendant's motion. Considered in the light most favorable to him, plaintiff, in both his verified complaint and deposition, at most alleges an agreement by him to grow an unspecified quantity of chickens for defendant in the future under certain quality conditions in return for which defendant agreed to guarantee plaintiff a stated minimum profit and to aid him in remodeling his chicken houses. Consequently, the acceptance of a proposition to make a contract, the terms of which are to be subsequently fixed, does not constitute a binding obligation. Construction Co. v. Housing Authority, 1 N.C.App. 181, 160 S.E.2d 542 (1968). An offer to enter into a contract in the future must, to be binding, specify all of the essential and material terms and leave nothing to be agreed upon as a result of future negotiations. Smith v. House of Kenton Corp., 23 N.C.App. 439, 209 S.E.2d 397 (1974), cert. denied, 286 N.C. 337, 211 S.E.2d 213 (1974). To constitute a valid contract, the parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode agreed on by which they may be settled, there is no agreement. Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692 (1974).

From plaintiff's deposition, it is manifestly clear that plaintiff and defendant never reached a mutual understanding as to how many chickens plaintiff would grow, the time or times they would be delivered by defendant to plaintiff for growing or delivered by plaintiff to defendant after growing, or the compensation to be paid by defendant to plaintiff. There simply was no meeting of the minds. Under these circumstances, summary judgment was properly entered and the judgment of the trial court must be

Affirmed.

MORRIS, C. J., and PARKER, J., concur.