Summit Ave. Bldg. Co. v. Sanders

• Decision Date: 18 April 1923
• Docket Number: 387.
• Parties: SUMMIT AVE. BLDG. CO. v. SANDERS.
• Court: North Carolina Supreme Court

117 S.E. 3

185 N.C. 328

SUMMIT AVE. BLDG. CO. v. SANDERS.

No. 387.

Supreme Court of North Carolina

April 18, 1923

Appeal from Superior Court, Guilford County; Harding, Judge.

Action by the Summit Avenue Building Company against J. P. Sanders and another. Judgment for plaintiff, and defendant Sanders appeals. New trial.

For opinion on former appeal, see 183 N.C. 413, 111 S.E. 705.

While the express terms of a written contract may not be varied by a contemporaneous oral agreement, it may be alleged and shown that the instrument was delivered on condition that it be not regarded as a contract until the happening of some contingent event.

The action is to recover against defendant for rentals and damages for breach of contract shown forth in evidence as follows:

"Greensboro N. C., October 25, 1919.

Memorandum of agreement between J. P. Sanders and W. E. Hockett, called the lessees, and Summit Avenue Building Company, called the lessors.

The lessees agree to form a hotel company, to be known as the North Carolina Hotel Exchange Company, within ten days from this date.

That lessors agree to lease to said hotel company all that lot and parcel of land in Greensboro, N. C., at the southwest corner of Greene and Washington streets, being about 113.30 feet on the south side of Washington street and 125 feet on the west side of Greene street, for a period of eight years, at an annual rental of $6,000.00 payable in advance January 1st of each year, beginning January 1, 1920. First payment to be made by promissory note of said lessees and their associates payable July 1, 1920, with interest at 6 % from January 1 1920. Lease to provide that hotel company, which is the lessee therein, shall have the option at the beginning of the ninth year to purchase said property and hotel thereon for $8,775.00. payable January 1, 1928. This option to be exercised at any time after January 1, 1927, and is conditional on all the terms and conditions of this contract and lease to hotel company being fully performed and complied with.

It is an essential part of this agreement and to be a condition of said lease, that the lessees, of said hotel company, cause to be erected on said premises a hotel of in the neighborhood of 200 rooms and to cost approximately $350,000.00, or more, for the building, and to furnish same with furniture equipment to cost approximately $100,000.00.

The note above referred to is to stand as security for the starting of the erection of said hotel on or before July 1 1920, and in event of failure to start erection of hotel within that time, this agreement and lease thereunder to be and become null and void, but said note, nevertheless, to be paid by the makers thereof to the Summit Avenue Building Company.

It is understood and agreed that a formal lease is to be executed by the Summit Avenue Building Company to the hotel company embodying the above terms and conditions and further containing covenants by the lessees to pay all state, county, municipal or other taxes or assessments against said property or assessments for paving streets or sidewalks adjacent thereto. Said property shall not be used during continuance of lease for any other purpose other than hotel purposes, except it may have a barber shop or other stores in hotel building, and in order to entitle the lessees to exercise option and purchase said property at end of the eight years, the hotel as hereinabove specified must be fully built and completed during the period of lease."

There was evidence on part of plaintiff tending to establish breach and damages.

Defendant in the pleadings denied that said paper writing had ever become a contract between the parties, and offered evidence tending to show that the same had been signed and delivered only on condition that it would not become...