DUFF-NORTON COMPANY v. Hall

150 S.E.2d 425 (1966) 268 N.C. 275

DUFF-NORTON COMPANY, a corporation,
v.
E. Pat HALL, A. Alex Shuford, Jr., Individually and Trading under the partnership name of Arrowood, and their wives, Hope P. Hall and Alice G. Shuford, Arrowood, Inc., a corporation, and Southern Railway Company, a corporation.

No. 275.

Supreme Court of North Carolina.

October 12, 1966.

Moore & Van Allen, by John T. Allred, Charlotte, for plaintiff appellee.

Clayton & London, Charlotte, for defendants E. Pat Hall, A. Alex Shuford, Jr., and Arrowood, Inc.

Jones, Hewson & Woolard, Charlotte, for Southern Railway Company.

PLESS, Justice:

G.S. § 8-89 specifically provides that a Judge has discretion to make orders with reference to the inspection of documents. To reverse Judge Clarkson the defendants would have to establish an abuse of discretion on his part.

In view of the affidavit and motion which sets forth: (1) an option for the benefit of the plaintiff; (2) a sale by the defendants of the optioned property; and (3) the failure of the optioneers to give plaintiff an opportunity to purchase the property, it could hardly be said the plaintiff's motion was without foundation. That being true, the court was justified in affording it access to information upon which to prepare its complaint.

In defendants' brief the argument is made that information as to the purchase price of 2,000 acres of land would give no substantial basis for determining the price or value of a small fraction of the boundary. This contention may or may not be well founded, but the plaintiff is entitled to the information in order to determine its course. The location, accessibility and advantages of the small tract will undoubtedly enter into its value, but the litigation has not yet proceeded to the point where this feature is to be determined.

The proposition that an action for specific performance will lie under the facts alleged herein is hardly debatable. "``A contract, where by one party, for a valuable consideration, grants to another an option on terms, conditions, and for a time, specified, to call for the doing of a certain act, constitutes an irrevocable offer which, on acceptance in accordance with its terms, gives rise to a contract that may be specifically enforced,'" Byrd v. Freemen, 252 N.C. 724, 114 S.E.2d 715, and other authorities there cited.

The defendants invoke the rule against perpetuities, since the option of the plaintiff could extend for a total period of 40 years. However, at this stage of the proceedings we are of opinion that this position is premature. Mercer v. Mercer, 230 N.C. 101, 52 S.E.2d 229. Weber v. Texas Co., 5 Cir., 83 F.2d 807, where it is said: "* * * This is not an exclusive option to the lessee to buy at a fixed price which may be exercised at some remote time beyond the limit of the rule against perpetuities, meanwhile forestalling alienation. The option simply gives the lessee the prior right to take the lessor's royalty interest at the same price the lessor could secure from another purchaser whenever the lessor desires to sell. It amounts to no more than a continuing and preferred right to buy at the market price whenever the lessor desires to sell. This does not restrain free alienation by the lessor. He may sell at any time, but must afford the lessee the prior right to buy. The lessee cannot prevent a sale. His sole right is to accept or reject as a preferred purchaser when the lessor is ready to sell. The option is therefore not objectionable as a perpetuity."

We have considered the other contentions made by the appellants but are of the opinion that the order of Judge Clarkson was proper, and it is hereby

Affirmed.