Piatt v. Krispy Kreme Doughnut Corp. , 28 N.C. App. 139 ( 1975 )

220 S.E.2d 173 (1975) 28 N.C. App. 139

Perry E. PIATT
v.
KRISPY KREME DOUGHNUT CORPORATION.

No. 7521SC473.

Court of Appeals of North Carolina.

December 17, 1975. Certiorari Denied February 3, 1976.

W. P. Sandridge and W. Andrew Copenhaver, Winston-Salem, for plaintiff-appellant.

Ralph M. Stockton, Jr., J. Robert Elster and Steven E. Philo, Winston-Salem, for defendant-appellee.

Certiorari Denied by Supreme Court February 3, 1976.

VAUGHN, Judge.

A complaint should not be dismissed for failure to state a valid claim unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Unless the face of the complaint shows an insurmountable bar to recovery, plaintiff's action should not be dismissed on the pleading. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161.

Defendant urges that, on its face the paper labeled "Rough Draft" was only a preliminary negotiating agreement and that the parties did not intent to be bound until the execution of a formal document. Defendant relies to a great extent on Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692. Although we do not necessarily agree that the document here, standing alone, "shows its incompleteness by emphasizing its preliminary character," Boyce, p. 734, 208 S.E.2d p. 695, plaintiff's case does not have to stand or fall on the face of that document. Here, plaintiff alleges that the "Rough Draft" he submitted was accepted by defendant as the contract between the parties. Broadly reading his pleadings, the document thereupon ceased to be a rough draft and became the contract between the parties. We hold that the Exhibit B, when read in the light of the remainder of the complaint, does not itself carry the terms that "destroy its efficiency as a contract." That being true, the question of whether the agreement is complete or partial must be left to inference or further proof. It cannot be said as a matter of law that the execution of a more formal agreement was a condition to any contractual right that might otherwise pertain. Bank v. Wallens and Schaaf v. Longiotti, 26 N.C.App. 580, 217 S.E.2d 12, or that the alleged agreement did not contain all material and essential terms of the parties' agreement.

Able counsel for defendant attacks the complaint on many fronts. We have carefully considered all of their well reasoned arguments but conclude, nevertheless, that no insurmountable bar to some recovery appears on the face of the complaint and attached exhibits.

Other questions of law that might arise cannot be resolved until plaintiff has the opportunity to come forward with his proof.

The judgment dismissing the action is reversed.

Reversed.

BROCK, C. J., and MARTIN, J., concur.