Cordaro v. Singleton

• Decision Date: 17 November 1976
• Docket Number: No. 764DC465,764DC465
• Citation: 31 N.C.App. 476,229 S.E.2d 707
• Court: North Carolina Court of Appeals
• Parties: Salvatore CORDARO v. J. A. SINGLETON, Jr. and Virginia Singleton v. Juanita CORDARO.

Page 707

229 S.E.2d 707

31 N.C.App. 476

Salvatore CORDARO v. J. A. SINGLETON, Jr. and Virginia Singleton v. Juanita CORDARO.

No. 764DC465.

Court of Appeals of North Carolina.

Nov. 17, 1976.

Cameron & Collins by William M. Cameron, Jr., Jacksonville, for plaintiff-appellee.

Taylor & Marquardt by Nelson W. Taylor, Morehead City, for defendants-appellants.

CLARK, Judge.

The issue upon appeal is whether the trial court erred in finding that the contract term 'Inability to get financing on the basis of credit will void this contract' encompassed a failure to obtain an adequate amount of financing.

Defendants contend there is no competent evidence to support the court's findings of fact. In non-jury trials it is presumed that the trial judge disregarded any incompetent evidence that may have been admitted, unless there is some indication in the judgment that the court relied upon the incompetent evidence. Williams v. Town of Grifton and Parker v. Town of Grifton, 19 N.C.App. 462, 199 S.E.2d 288 (1973).

The allegedly incompetent evidence on which the trial court relied is the testimony by plaintiff and his wife to statements made by them and by Tom Singleton during the negotiations. These statements were relevant to the finding that the contract was signed 'with the understanding that if plaintiff could not get financing his cash deposit would be refunded.'

Although the testimony to statements made by Tom Singleton is clearly hearsay, it is admissible if he were an agent of the defendants. (The agency issue is treated later.) A principal is bound by statements made by an agent acting within the scope of his authority and in the course of his agency. Norburn v. Mackie, 262 N.C. 16, 136 S.E.2d 279 (1964). The testimony about his statements was therefore properly admitted under the exception to the hearsay rule for admissions by a party opponent. 2 Stansbury, N.C. Evidence § 167 (Brandis Rev.1973).

The defendants contend that even if Tom Singleton were their agent, evidence of statements and conduct by the parties and their agents, both before and after execution, was not admissible under the parol evidence rule to vary, add to or contradict the agreement. We reject this contention in view of the ambiguous contract terms. The heart of a contract is the intention of the parties, which is to be ascertained from the language used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time. Sell v. Hotchkiss, 264 N.C. 185, 141 S.E.2d 259 (1965). Where the language of a contract is plain and unambiguous the construction of the agreement is a matter of law for the court, and its terms may not be contradicted by parol or extrinsic evidence, Unless the terms of the instrument itself are ambiguous and require explanation. Root v. Insurance Co., 272 N.C. 580, 158 S.E.2d 829 (1968).

We do not find plain and clear the language 'Inability to get financing on the basis of credit will void this contract.' There is doubt and uncertainty as to the meaning of this language. In order to clarify this ambiguous term, relevant, extrinsic evidence to clarify its terms was properly admitted.

The 'Purchase Agreement' was in the nature of a printed form memorandum. The sentence 'Inability to get financing on the basis of credit will void this contract' was added to the printed form after a discussion between Tom Singleton and plaintiff and his wife, during which plaintiff expressed concern about obtaining adequate financing. The evidence discloses that this sentence was written in the printed agreement by Tom Singleton, that he did so at the request of the Cordaros to protect them against loss of the $1,500 deposit if they were unable to get financing. It is not clear whether the language inserted was dictated by them or was the language of the writer.

Evidence of conduct by the parties after executing the contract is not subject to the parol evidence rule, and is admissible to show intent and meaning. Preyer v. Parker, 257 N.C. 440, 125 S.E.2d 916 (1962). The evidence discloses that to purchase the house and lot the plaintiff needed a long-term mortgage loan, and so advised Tom Singleton, who referred plaintiff to Cooperative Saving and Loan Association in...