Ferguson v. Phillips , 268 N.C. 353 ( 1966 )

150 S.E.2d 518 (1966) 268 N.C. 353

Steve FERGUSON
v.
Robert G. PHILLIPS and wife Leona Craig Phillips.

No. 280.

Supreme Court of North Carolina.

October 19, 1966.

W. Faison Barnes, Carl W. Howard, Charlotte, for plaintiff appellant.

John D. Shaw, Charlotte, for defendants appellees.

PLESS, Justice.

Options "being unilateral in their inception are construed strictly in favor of the maker, because the other party is not bound to performance, and is under no obligation to buy. * * * [I]t is generally held that time is of the essence of such a contract, and that the conditions imposed must be performed in order to convert the right to buy into a contract of sale." Carpenter v. Carpenter, 213 N.C. 36, 195 S.E. 5.

"Where an option stipulates a definite time for performance it is generally held that time is of the essence, and that payment or tender of the amount agreed within the time specified is necessary to convert the right to buy into a contract of bargain and sale." Strong, Vendor and Purchaser, Sec. 2, and cases there cited.

"Ordinarily time is of the essence of an option under contract relating to land, whether or not so expressed. The optionor being bound only during the time specified for the election to accept the option." * * "So acceptance must be made and conditions performed within the time limited by the option in order to constitute a contract of sale."

"Time is likewise of the essence of an agreement for the extension of the time for the acceptance, which must be supported by a consideration whether made before or after the time limited for the exercise of the original option, and which may be withdrawn before acceptance unless made on a consideration." 91 C.J.S. Vendor and Purchaser, § 11, p. 862.

While the plaintiff mailed his "exercise" of the option within the time, it was conditioned upon an extension which was never granted by the defendants, and in which he stated his lack of available funds.

"If the acceptance contains material conditions not included in the offer, such purported acceptance constitutes a counter proposal which the other party is not bound to accept." 1 Strong 573; Contracts, Sec. 2.

The plaintiff testified that he went to Mr. Shaw's office on the morning that the option was to expire at 10 o'clock, arriving about 9:45 and staying until about noon. He testified further that he was not in position at that time to pay the defendant $22,500 plus the rents, but that he did make arrangements to obtain the money that afternoon. While there had been some discussion between the parties regarding a proposed extension of the time of the option, it was never executed and, in fact, the exact terms were never agreed upon. Consequently, this case falls within the rules stated above, i. e., the vendor did not within the time permitted by the contract make an unequivocal acceptance of it. He was not in position within that time to pay the purchase price and he made no tender on that date to the defendants. He did tender the purchase price late that afternoon to the attorney for the defendants, who stated that he had no authority to accept the tender. It appears that the plaintiff just waited too late to begin his preparations to take up the option. Under his evidence he first approached Mr. Thomas of the First Federal Savings & Loan Association to borrow the amount of the purchase price on 16 November, just six days before the time of the option to expire. Apparently he had known for several weeks that he intended to exercise his rights under the option, but for some reason failed to act promptly. The defendant has a right to rely upon the terms of the option and the action of the court in sustaining the motion for judgment of nonsuit was correct.

The plaintiff excepted to the exclusion of the evidence of Mr. C. D. Thomas, Vice-President of the First Federal Savings & Loan Association. However, Mr. Thomas did not purport to testify to any fixed or valid agreement for an extension of the time although he did engage in conversations with Mr. Phillips in regard to it. In view of our ruling on the motion for nonsuit and the vagueness of Mr. Thomas' testimony, it is not pertinent to this appeal.

The order of Judge Jackson is

Affirmed.