Boyce v. McMahan

206 S.E.2d 496 (1974) 22 N.C. App. 254

R. C. BOYCE
v.
L. Ray McMAHAN.

No. 7418SC351.

Court of Appeals of North Carolina.

July 3, 1974.

Smith, Moore, Smith, Schell & Hunter by Beverly C. Moore and Richard A. Leippe, Greensboro, for plaintiff-appellant.

Fisher & Fisher by Louis J. Fisher, Jr., High Point, and Turner, Rollins & Rollins by Thomas Turner, Greensboro, for defendant-appellee.

MORRIS, Judge.

Plaintiff contends that the paper writing which is the subject of this action is merely an agreement to agree, and therefore unenforceable as a contract. We think there is merit to this position.

"An offer to enter into a contract in the future must, to be binding, specify all the essential and material terms and leave nothing to be agreed upon as a result of future negotiations. (Citations omitted.)" Young v. Sweet, 266 N.C. 623, 625, 146 S.E.2d 669, 671 (1966).

"``Unless an agreement to make a future contract is definite and certain upon the subjects to be embraced therein it is nugatory. Consequently, the acceptance of a proposition to make a contract, the terms of which are to be subsequently fixed, does not constitute a binding obligation. . . . Therefore, a contract to enter into a future contract must specify all its material and essential terms, and leave none to be agreed upon as a result of future negotiations.' 1 Elliott on Contracts, sec. 175." Croom v. Lumber Co., 182 N.C. 217, 220, 108 S.E. 735, 737 (1921).

A thorough reading of the above quoted paper writing makes it perfectly clear that the parties intended it to be a preliminary statement of their desires or objectives. It is certainly obvious that the paper writing is not sufficiently specific to be the basis for a decree of specific performance. Even if the parties had intended this document to be a final agreement, the document would not be enforceable, for the parties have expressly made it subject to a "more detailed agreement at some specific date to be agreed to by the parties hereto." The paper writing was executed and made expressly subject to a future agreement—an agreement which could be vitiated by either party's refusal to acquiesce in a proposed term. The paper writing before us is, therefore, unenforceable, and the order of the trial court awarding specific performance must be reversed and the cause remanded for the entry of an order granting plaintiff's motion for summary judgment.

Reversed.

CAMPBELL, J., concurs.

VAUGHN, J., dissents.