Burden Pallet Co. v. Ryder Truck Rental, Inc. , 49 N.C. App. 286 ( 1980 )

271 S.E.2d 96 (1980)

BURDEN PALLET COMPANY, INC.
v.
RYDER TRUCK RENTAL, INC.

No. 8028SC75.

Court of Appeals of North Carolina.

October 21, 1980.

Bennett, Kelly & Cagle by Harold K. Bennett, Asheville, for plaintiff-appellant.

Van Winkle, Buck, Wall, Starnes & Davis by Larry McDevitt, Asheville, for defendant-appellee.

CLARK, Judge.

The defendant's motion for directed verdict was made orally but the record on appeal does not disclose the specific grounds therefor. G.S. 1A-1, rule 50(a). The better practice is to set forth the specific grounds in a written motion. "If the movant relies upon an oral statement for such specific grounds, a transcript thereof must be incorporated in the case on appeal." Hensley v. Ramsey, 283 N.C. 714, 726, 199 S.E.2d 1, 8 (1973). Such transcript does not appear in the record on appeal. However, the parties concede in their briefs that the only ground stated by defendant, and the basis for the judgment directing the verdict, was that the contract was unenforceable because it was not signed by the defendant as required by the contract. Under the circumstances we elect to waive the Rule 50(a) violation and to consider the appeal on its merits.

A contract for the lease of personal property is not required by statute to be in writing and signed by the parties. The object of a signature to a contract is to show assent, but the signing of a written contract is not necessarily essential to its validity. Assent may be shown in other ways, such as acts or conduct or silence. Fidelity and Casualty Co. v. Charles W. Angle, Inc., 243 N.C. 570, 91 S.E.2d 575 (1956); Coppersmith v. Aetna Ins. Co., 222 N.C. 14, 21 S.E.2d 838 (1942); Executive Leasing Associates v. Rowland, 30 N.C.App. 590, 227 S.E.2d 642 (1976).

The issue on appeal involves more than failure of a party to sign a written contract in that the contract (lease agreement) contained a specific provision that it was "not binding upon Ryder until executed at its general offices in Miami ...." But basically the same principle of law is applicable. Though the contract made signing at its offices in Miami a condition precedent to being bound, the circumstances may, however, either amount to a waiver of this requirement or work an equitable estoppel against Ryder. Oliver v. U. S. Fidelity and Guaranty Co., 176 N.C. 598, 97 S.E. 490 (1918); 17 Am.Jur., Contracts, § 71. And we find that the circumstances in this case are sufficient to withstand a directed verdict for defendant and to justify the submission to the jury of an appropriate issue on the validity of the contract.

We find particularly significant the following circumstances: The lease agreement was prepared by defendant, executed by plaintiff, and returned to and retained by defendant or its agent. Plaintiff was not advised of any time period within which the contract would be submitted to and executed or rejected at defendant's Miami offices. Defendant provided a tractor and accepted payments from plaintiff under the contract terms for a substantial period of time. Over a period of about a year defendant failed to notify plaintiff that the agreement was rejected and not signed at its Miami offices. Plaintiff relied on defendant's promises to alter an electronic van for use with the tractor.

These acts and conduct by the defendant are substantial evidence that defendant waived its contract right to first have it signed at its Miami offices or should be equitably estopped from asserting that right. It would be unconscionable to allow the defendant to accept the benefits of the contract and to avoid its obligations thereunder by retaining the contract unsigned.

The judgment for directed verdict is vacated and the cause is remanded.

Vacated and Remanded.

MORRIS, C. J., and HILL, J., concur.