Barham v. Davenport, 599

Citation101 S.E.2d 367, 247 N.C. 575
Case DateJanuary 10, 1958
CourtUnited States State Supreme Court of North Carolina

Page 367

101 S.E.2d 367
247 N.C. 575
R. Larry DAVENPORT and wife,
Rebecca M. Davenport.
No. 599
Supreme Court of North Carolina.
Jan. 10, 1958

Page 368

[247 N.C. 576] Frazier & Frazier, Greensboro, for plaintiff, appellant.

Douglas, Douglas & Ravenel, Greensboro, for defendants, appellees.

JOHNSON, Justice.

This is a civil action for specific performance of an option on real estate. The case was heard below on demurrer ore tenus to the complaint for failure to state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff appeals.

These in substance are the crucial allegations of the complaint: On 29 April, 1948, W. T. Davenport leased the locus in quo to Robert A. Young and John N. Young for a term of five years, beginning 1 June, 1948, and ending at midnight 31 May, 1953, with right of renewal for one year or for a period of five years. The lease was duly registered 28 May, 1948.

The lease grants the lessees and their assigns an option to purchase the premises. The option provisions are as follows:

'9. Lessor hereby grants to Lessee the privilege and option to purchase the premises herein demised on the lst day of June, 1953, or at any time thereafter, if the same shall be during a renewal period of this lease, as herein provided, and said lease shall have, in fact, been renewed, for the cash sum of Twenty Thousand ($20,000.00) Dollars, upon written notice by Lessee to Lessor of Lessee's election to exercise said option and purchase said premises, which said notice shall be given to Lessor at least ninety (90) days prior to the 1st day of June, 1953.'

This controversy relates solely to the interpretation of the foregoing paragraph.

The plaintiff alleges that the lease has been assigned to him; and that the defendant is now the owner of the premises [247 N.C. 577] subject to the lease. It is alleged also that on 16 May, 1957, the plaintiff notified the defendant in writing of his desire to exercise the option to purchase; and that the defendant on 22 May, 1957, refused to convey the premises.

The single question presented for decision is whether the plaintiff gave timely notice of his intention to purchase. The court below held that the plaintiff's notice to the defendant on 16 May, 1957, was given too late, and allowed the defendant's demurrer ore tenus. In this ruling we concur.

The lease was made 29 April, 1948, for a term of five years. The tenant was given the option to...

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11 cases
  • Fidelity & Cas. Co. of N. Y. v. Nello L. Teer Co., 670
    • United States
    • United States State Supreme Court of North Carolina
    • 12 Junio 1959
    ...and result contrary to the express language of a contract by the assertion that it does not truly express his intent. Barham v. Davenport, 247 N.C. 575, 101 S.E.2d 367; De Bruhl v. State Highway & Public Works Comm., 245 N.C. 139, 95 S.E.2d 553; Howland v. Stitzer, 240 N.C. 689, 84 S.E.2d 1......
  • Lester Bros., Inc. v. J. M. Thompson Co., 459
    • United States
    • United States State Supreme Court of North Carolina
    • 31 Enero 1964
    ...right to make their own contract, and if the contract is clearly expressed, it must be enforced as it is written.' Barham v. Davenport, 247 N.C. 575, 578, 101 S.E.2d 367, 369, and cases cited. And, 'where the language of a contract is free from ambiguity, the ascertainment of its meaning an......
  • Eagle Tail, Inc. v. Orris
    • United States
    • Supreme Court of New Mexico
    • 5 Enero 1962
    ...673, 345 P.2d 102; Noble v. Higgins, 214 Ppp.Div. 135, 211 N.Y.S. 833; Gray v. Lipscomb, 48 Wash.2d 624, 296 P.2d 308; Barham v. Davenport, 247 N.C. 575, 101 S.E.2d 367. However, they are not authority for appellee's position in a case such as this where the time for exercising the option h......
  • Catawba Athletics, Inc. v. Newton Car Wash, Inc.
    • United States
    • Court of Appeal of North Carolina (US)
    • 15 Septiembre 1981 must be enforced as it is written, and the court may not disregard the plainly expressed meaning of its language. Barham v. Davenport, 247 N.C. 575, 101 S.E.2d 367 (1958). Options, "being unilateral in their inception, are construed strictly in favor of the maker, because the other party......
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