Askew's Inc. v. Cherry, 713DC140
| Decision Date | 26 May 1971 |
| Docket Number | No. 713DC140,713DC140 |
| Citation | 181 S.E.2d 201,11 N.C.App. 369 |
| Court | North Carolina Court of Appeals |
| Parties | ASKEW'S INC., a Corporation, Plaintiff, v. Leroy T. CHERRY and Building Enterprises, Inc., Defendants and Third-PartyPlaintiffs, v. RED CARPET INN OF NEW BERN, INC., Third-Party Defendants. |
Wheatly & Mason by C. R. Wheatly, Jr., Beaufort, for third party plaintiff appellants.
Ward, Tucker, Ward & Smith by David L. Ward, Jr., New Bern, for third party defendant appellee.
If a party moving for summary judgment presents, by affidavits or otherwise, materials which would require a directed verdict in his favor, if presented at trial, then he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him, or he comes forward with some materials, by affidavit or otherwise, that show there is a triable issue of material fact. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425; 6 Moore's Federal Practice 2d, § 56.11(3), p. 2171.
The answer and affidavit introduced by Red Carpet show that it has complied with the settlement agreement wherein it was released of all claims arising out of the motel project by Cherry and Building. The only attempted showing to the contrary by appellants was the affidavit in which Cherry contended that the settlement agreement required Red Carpet to pay all debts incurred by Building in connection with the motel project.
Where the language of a contract is plain and unambiguous the construction is a matter of law for the courts. 2 Strong, N.C. Index 2d, Contracts, § 12, p. 311.
The settlement agreement in question is clear and unambiguous. Under the agreement, Building was to be paid an amount equal to its audited cost on the project, plus 5% Thereof, and less amounts already paid under the construction contract. In agreeing that payment was to be made by issuing and delivering checks payable to Building and its creditors, the parties were simply undertaking to protect Building's creditors to the extent of the money owed Building by Red Carpet. The method of payment had nothing to do with the amount owed.
We find no promise in the agreement that the amount owed by Red Carpet to Building, when determined by an audit, would equal the amount of Building's obligation to its creditors. Building and Cherry have come forward with nothing to show that the audit was inaccurate. Furthermore, they do not deny that they have received payments which the audit...
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