Snipes v. Snipes ( 1982 )

Judge Hedrick

dissenting.

The majority points out that “[djemand is a necessary prerequisite to forfeiture for nonpayment of rent.” [Emphasis added.] Indeed, Reynolds v. Earley, 241 N.C. 521, 85 S.E. 2d 904 (1955) does require that demand be made before there can be “[a] forfeiture under G.S. 42-3 for failure to pay rent.” Id. at 525, 85 S.E. 2d at 907. [Emphasis added.] The evidence in the present case, however, is sufficient to bring into play a contract-vitiating legal doctrine other than “forfeiture under G.S. 42-3.” That doctrine is known as rescission by mutual agreement. See Brannock v. Fletcher, 271 N.C. 65, 155 S.E. 2d 532 (1967). There is a distinction between rescission and forfeiture. Brannock v. Fletcher, supra. An implied agreement to rescind may consist in an abandonment or repudiation of the contract by one of the parties assented or acquiesced in by the other party; but to constitute rescission by mutual consent, both these elements, the abandonment or repudiation and the assent or acquiescence, must be present. Brannock v. Fletcher, supra. Further, abandonment may be inferred only from acts and conduct which are clearly inconsistent with the contract. Brannock v. Fletcher, supra.

In the present case, there is evidence that plaintiff had not paid rent owing under the lease agreement and that he told defendant that the lease agreement was made for her husband and not for defendant. Such nonpayment of rent would constitute a repudiation and an abandonment by plaintiff of his obligations under the contract. Further, there was evidence that the defendant landlord acquiesced to plaintiff’s nonpayment of rent and that defendant believed that plaintiff “just felt like [he] didn’t have to pay [rent].” There is, therefore, evidence of each element of mutual rescission, and such evidence would be sufficient to support a verdict that the lease agreement containing the right of first refusal no longer existed. A directed verdict for the party with the burden of proof is proper only when his evidence so clearly establishes the fact in issue that no reasonable inference to the contrary can be drawn. North Carolina National Bank v. Burnette, 297 N.C. 524, 256 S.E. 2d 388 (1979). The continued existence of the lease agreement is the fact in issue in the present case, and defendant’s evidence of mutual rescission was sufficient to permit a reasonable inference of the contract’s nonexistence. In my opinion, when all of the evidence is considered together with all of the circumstances surrounding the lease between members of the same family and the death of one of the lessors and the conduct of the lessee and the surviving lessor, there was sufficient evidence to raise an inference that there was a rescission of the lease; and, in my opinion, a directed verdict for the plaintiff was improper.

I vote to reverse.