Goeckel v. Stokely

• Decision Date: 10 December 1952
• Docket Number: No. 528,528
• Citation: Goeckel v. Stokely, 236 N.C. 604, 73 S.E.2d 618 (N.C. 1952)
• Parties: GOECKEL, v. STOKELY.
• Court: North Carolina Supreme Court

Page 618

73 S.E.2d 618

236 N.C. 604

GOECKEL, v.STOKELY.

No. 528.

Supreme Court of North Carolina.

Dec. 10, 1952.

Elbert E. Foster and J. F. Flowers, Charlotte, for defendant, appellant.

Alvin A. London and O. W. Clayton, Charlotte, for plaintiff, appellee.

JOHNSON, Justice.

The defendant's assignments of error challenge the action of the trial court in (1) overruling his motion for judgment as of nonsuit, (2) charging the jury on the second issue, and (3) limiting the defendant's counterclaim-recovery to $107.41.

1.The refusal to nonsuit.The defendant takes the position that his letter of 7 February, 1951, to the plaintiff sets forth the terms of his offer of employment, and that the plaintiff after receiving the letter came to Charlotte and entered upon the work of the defendant.On these facts, the defendant contends the plaintiff accepted the terms of the employment as set out in the letter, and that since the asserted item of moving expense is nowhere mentioned in the letter, the plaintiff is precluded from recovering therefor.

The defendant's position is untenable.It fails to take into account (1)the plaintiff's letter of reply dated 13 February, 1951, indicating that the matter of 'expense of moving' was being left open for further discussion, and (2)plaintiff's testimony that when the matter was discussed in Chicago the defendant verbally agreed to pay this item of expense.

To constitute a valid contract the parties must assent to the same thing in the same sense, and their minds must meet as to all the terms.If any portion of the proposed terms is not settled, there is no agreement.Sprinkle v. Ponder, 233 N.C. 312, 64 S.E.2d 171;Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322;Sides v. Tidwell, 216 N.C. 480, 5 S.E.2d 316;Federal Reserve Bank v. Neuse Manufacturing Co., 213 N.C. 489, 196 S.E. 848;Croom v. Goldsboro Lumber Co., 182 N.C. 217, 108 S.E. 735;Wilson v. W. M. Storey Lumber Co., 180 N.C. 271, 104 S.E. 531.

And where correspondence or written memoranda is relied on to establish a contractual relation, if, from the language used, it appears that some term which either party desires to be in the contract is not included, requiring further treaty between the parties, there is no completed agreement.12 Am.Jur., Contracts, Sec. 23.See alsoRichardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E.2d 897, 149 A.L.R. 201.

Here it is manifest from plaintiff's reply letter of 13 February that the minds of the parties did not meet on the proposals set out in the defendant's letter of 7 February and that further treaty between the parties was necessary in respect to whether the defendant was to pay the plaintiff's expense of moving.And the evidence pro and con as to whether this item was made a part of the employment contract as finally consummated presented a clearcut issue of fact for the jury.

2.The charge on the second issue.The defendant(1) points to the fact that the plaintiff has declared on a special contract whereby the defendant allegedly agreed to pay plaintiff's moving expense, and (2) urges that all the evidence tends to show the amount of this expense was $580.62.Upon this theory of the trial, so fixed by the pleadings and proofs, the defendant contends the plaintiff was entitled to recover all or none of this amount and that the trial court should have so instructed the jury.The defendant therefore contends it was error for the trial court to charge the jury...