Carolina Helicopter Corp. v. Cutter Realty Co., 244

• Decision Date: 16 December 1964
• Docket Number: No. 244,244
• Citation: 263 N.C. 139,139 S.E.2d 362
• Court: North Carolina Supreme Court
• Parties: CAROLINA HELICOPTER CORPORATION v. CUTTER REALTY COMPANY, Inc.

Page 362

139 S.E.2d 362

263 N.C. 139

CAROLINA HELICOPTER CORPORATION v. CUTTER REALTY COMPANY, Inc.

No. 244.

Supreme Court of North Carolina.

Dec. 16, 1964.

Richard M. Welling, Charlotte, for plaintiff.

Grier, Parker, Poe & Thompson and James Y. Preston, Charlotte, for defendant.

MOORE, Justice.

Plaintiff seeks to recover special damages for a breach of an alleged contract, to wit, a parol lease of the roof of defendant's building for a term of one year.

A lease for a term of years is a contract, by which one agrees, for a valuable consideration, to let another have the occupation and profits of land for a definite time. Moring v. Ward, 50 N.C. 272. A lease for one year need not be in writing. G.S. § 22-2; Moche v. Leno, 227 N.C. 159, 41 S.E.2d 369.

Defendant contends that the alleged lease, if otherwise valid, is void for uncertainty as to the commencement of the term. 'It is a cardinal principle in the creation of terms for years that the term must be certain, that is, there must be certainty as to the commencement and duration of the term.' 32 Am.Jur., Landlord and Tenant, § 62, p. 77. Plaintiff alleges that the term was to begin when plaintiff secured permission for use of the roof for operation of a helicopter taxi service, and secured a proper helicopter and necessary equipment for the operation of the service. Defendant insists that this provision is too indefinite.

Defendant relies on Gay Manufacturing Co. v. Hobbs, 128 N.C. 46, 38 S.E. 26, which involved a conveyance of timber with a period of five years for cutting and removing logs from the land of defendant, the term 'to commence from the time * * * party of the second part (plaintiff) begins to manufacture said lumber (timber) into wood or lumber.' The Court said: 'The contract may be treated as a lease or a term for years, * * *. An indispensable legal requirement to the creation of a lease or a term of years is that it shall have a certain beginning and a certain end. * * * That act on the part of plaintiff may never take place. It is entirely uncertain. * * * If the doctrine of reasonable time could be involved in this case, the plaintiff would be in no better condition than he now occupies. * * * the contract (was) made 13 years ago * * *.'

However, the Hobbs case has been criticized and overruled, except as to the result reached. Hawkins v. Goldsboro Lumber Co., 139 N.C. 160, 165, 51 S.E. 852. In the Hawkins case the Court said: 'Under the facts and circumstances of the Hobbs Case the court very properly held that the time of commencing was unreasonable, and, being eight years beyond the stipulated period, the rights of the parties under the contract had determined. But the opinion errs in holding that the deed was void. This conclusion was predicated on the assumption that the instrument in question was a lease and had no certain or definite beginning.' The Court concluded that even if it were a lease, it would not be void. There is an extended quotation from Lord Coke, stating that 'a lease for years may be made on a condition or contingent precedent,' and that the term of a lease may be made certain 'by reducing it to a certainty by matter ex post facto.'

As to the proposition of indefiniteness, Hobbs furnishes no authoritative holding. It stands only for the proposition that the lessee or grantee did not act within a reasonable time. In the case at bar plaintiff alleges that the agreement was made about 1 February 1963, and it had performed the acts necessary to fix the commencement of the one year term prior to 5 March 1964--the date of the institution of this action.

'The general rule that a thing is certain which is capable of being made certain, id certum est quod certum reddi potest, is applied to leases for a term of years.' 32 Am.Jur., Landlord and Tenant, § 62, p. 78. '* * * a lease may provide that the term is to commence on the happening of a stated event, with the result that after the occurrence of the event all uncertainty is removed and the lease is valid and binding, but if the event on which the commencement of the term is clearly conditional does not occur no tenancy commences.' (Emphasis added.) 51 C.J.S. Landlord and Tenant § 28, pp. 534, 535. For cases involving leases to commence in the future, upon the happening of specified events, see: Oldfield v. Angeles Brewing & Malting Co., 62 Wash. 260, 113 P. 630 (1911); Fanta v. Maddex, 80 Cal.App. 513 252 P. 630 (1926); Imperial Water Co. No. 8 v. Cameron, 67 Cal.App. 591, 228 P. 678 (1924); De Pauw University v. United Electric Coal Companies, 299 Ill.App. 339, 20 N.E.2d 146 (1936); Wunsch v. Donnelly, 302 Mass. 286, 19 N.E.2d 70 (1939); Pfeiffenberger v. Scott's Cleaning Co., Mo.App., 144 S.W.2d 183 (1940).

Plaintiff performed all acts necessary on its part to make certain the commencement of the term. Defendant's contention that the commencement of the term is so indefinite as to render the lease void is not sustained.

Defendant contends further that the facts alleged do not constitute a contract or an agreement to make a contract for that it appears that other material terms, not agreed upon, were contemplated by the parties. Defendant suggests that there was no meeting of the minds with respect to the following: (1) how the roof was to be prepared for use as a 'heliport' and who was to bear the expense thereof; (2) how extensive the service was to be and the number of helicopters to be used; (3) what means of access to the roof would be established; (4) what arrangements would be made for fire protection and who was to furnish the equipment; (5) who was to provide fire and liability insurance and in what amounts; (6) what maintenance and personnel to be provided to accommodate the service; (7) whether service was to be continuous or only a daytime operation; (8) who was to obtain permission from the City of Charlotte for operation of the service; and (9) what type of approval is available from the Federal Aviation Authority, that is, blanket or qualified authority.

This contention is in the nature of a speaking demurrer. For the purposes of the demurrer the facts alleged and reasonable inferences to be drawn therefrom are deemed admitted. Copple v. Warner, 260 N.C. 727, 133 S.E.2d 641. Grounds for demurrer may not invoke matters not appearing on the face of the complaint. J. A. Jones Construction Company v. Local Union 755 of the International Brotherhood Electrical Workers Union, 246 N.C. 481, 98 S.E.2d 852. The essentials of a lease are parties (lessor and lessee), the real estate demised, the term of the lease, and the consideration or rent. 32 Am.Jur., Landlord and Tenant, § 2, pp. 27-29. The complaint sets out these essentials. Of course a lease may contain other terms, but for the purpose of testing the complaint by demurrer they must appear from the facts pleaded either expressly or by necessary implication. 'The complaint is not to be overthrown by demurrer, if in any portion or to any extent, it states facts sufficient to constitute a cause of action. * * * It must be fatally defective before it is rejected as insufficient. * * * 'Upon examination of a pleading to determine its sufficiency as against a demurrer, its allegations will be liberally construed with a view to substantial justice, C.S., 535, [--G.S. § 1-151--] and every reasonable intendment and presumption will be given the pleader, and the demurrer overruled unless the pleading is wholly insufficient.'' Sandlin v. Yancey, 224 N.C. 519, 521, 31 S.E.2d 532. 'In considering the expressions of agreement, the court must not hold the parties to some impossible, or ideal or unusual standard. It must take language as it is and people as they are. All agreements have some degree of indefiniteness and some degree of uncertainty.' Corbin on Contracts, Vol. 1, p. 396.

A lease includes the implied covenant of quiet enjoyment, which extends to those easements and appurtenances whose use is necessary and essential to the enjoyment of the leased premises. Rickman Manufacturing Co. v. Gable, 246 N.C. 1, 97 S.E.2d 672; Huggins v. Waters, 154 N.C. 443, 70 S.E. 842; 32 Am.Jur., Landlord and Tenant, § 169, pp. 163-165. This extends to the right of access and exit, including the use of steps, halls, stairways and elevators. 32 Am.Jur., Landlord and Tenant, §§ 170, 172, pp. 165-167. In the absence of some covenant or agreement to that effect, a lessee is under no duty to the lessor to insure the demised premises. Ibid., § 183, p. 174. Likewise, the lessor is under no obligation to provide liability insurance covering the operation by lessee of its separate business on or from the leased property. It does not appear from the pleadings that there are any city ordinances requiring fire extinguishing equipment or special city license for the operation of the business proposed. If there are such they become a part of the contract according to their provisions. 1 Strong: N.C.Index, Contracts, § 1, pp. 571, 572. According to the complaint, the helicopter service was to be operated and managed by plaintiff. The extent of its services and the details of the operation are matters to be determined by it. The only requirement is that it provide a helicopter and necessary equipment and render service.

Defendant's contention that the complaint shows the parties had not agreed on some of the material terms of the contract is not sustained.

There is sufficient allegation of consideration. 'It may be stated as a general rule that 'consideration' in the sense the term is used in legal parlance, as affecting the enforceability...