Barham v. Davenport, 599
| Decision Date | 10 January 1958 |
| Docket Number | No. 599,599 |
| Citation | 101 S.E.2d 367,247 N.C. 575 |
| Parties | John BARHAM v. R. Larry DAVENPORT and wife, Rebecca M. Davenport. |
| Court | North Carolina Supreme Court |
Frazier & Frazier, Greensboro, for plaintiff, appellant.
Douglas, Douglas & Ravenel, Greensboro, for defendants, appellees.
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:
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 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 purchase the premises on 1 June, 1953, or at any time during a renewal period, but in either case the tenant was required to give written notice of his election to exercise the option at least ninety days before 1 June, 1953. Nevertheless, the tenant waited until after this date, during the five-year renewal period, to give notice of his election to purchase.
The plaintiff contends that the provisions relating to the option are ambiguous and contradictory and should be interpreted, favorably to the tenant, to mean that he had the right to purchase by giving notice of intention ninety days before expiration of any renewal period. Here, however, the language is plain, unambiguous, and free of contradiction. It gave the tenant no right to wait beyond the original term...
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...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......
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...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......
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