Nash v. Yount , 35 N.C. App. 661 ( 1978 )

242 S.E.2d 398 (1978) 35 N.C. App. 661

Edmund Strudwick NASH, trading and doing business as Nash Properties, Inc.
v.
Robert L. YOUNT and William E. Butner, trading and doing business as Wilkes Industrial Park.

No. 7723SC405.

Court of Appeals of North Carolina.

March 21, 1978. Certiorari Denied May 8, 1978.

McElwee, Hall & McElwee by William H. McElwee, III, North Wilkesboro, for plaintiff-appellee.

William E. Butner and J. Richardson Rudisill, Jr., Hickory, for defendants-appellants.

Certiorari Denied by Supreme Court May 8, 1978.

WEBB, Judge.

We hold that Judge Crissman was correct and the judgment must be affirmed. It seems clear that there is no genuine issue as to the following facts: The plaintiff and defendants entered into a contract under the terms of which the plaintiff was to receive a ten percent commission on property sold. Excluded from the property on which the plaintiff was to receive the commission was "land lying east of Cub Creek, adjoining Elmer Lowe's property and north of State Road servicing Tom Thumb Plant." The sale was made within the listing period.

If the phrase in quotation marks above is ambiguous, the motion for summary judgment should not have been allowed. We hold that it is not ambiguous. By the use of the conjunction "and," we hold that the contract can only be interpreted to mean that in order for property to be excluded from the listing, it must be both east of Cub Creek and north of the State Road serving the Tom Thumb Plant.

The defendants contend that the language is ambiguous because they interpret it as excluding all the land east of Cub Creek and also all the land north of the road serving the Tom Thumb Plant. They also contend that the description does not mention a valuable building which was on a part of the property and the parties would have mentioned this building if they had intended to include it. The defendants also contend they could have offered evidence as to the proper interpretation of the contract.

Since we have held the terms of the contract are not ambiguous, the express language of the contract controls and not what either party thought the agreement to be. Crockett v. Savings and Loan Association, 289 N.C. 620, 224 S.E.2d 580 (1976). When the terms of a contract are not ambiguous, the court and not a jury will interpret it. Brokers, Inc. v. Board of Education, 33 N.C.App. 24, 234 S.E.2d 56 (1977).

The defendants also contend that damages in the amount of $21,400.00 should not have been awarded. They contend that no tangible res was received from which to pay a commission, that the consideration was the assumption by the buyer of an indebtedness and the defendants will not receive anything of actual value except as the indebtedness is paid. We do not take such a view of the term "gross consideration." We believe it means the total consideration before deductions for expenditures or other things. See the definition of "gross earnings" in Black's Law Dictionary, Rev. 4th Ed., at page 599. We hold that when the purchasers of the property assumed an indebtedness of $214,000.00, the gross consideration to the defendants was $214,000.00. The plaintiff was entitled to a commission of $21,400.00.

The judgment of the Superior Court is

Affirmed.

BRITT and HEDRICK, JJ., concur.