Everett Davenport Trading v. Davenport
Everett Davenport Trading v. Davenport
Opinion of the Court
The parties agree that the written contract, duly executed by plaintiff and defendant, Douglas W. Davenport, on 10 August 1972, provided in substance that said defendant would sell to plaintiff 20,000 bushels of corn at $1.18 per bushel, and that plaintiff would pick up the corn in his vehicles at defendants’ farm from time to time on or before 20 September 1972.
Plaintiff alleges that said defendant breached the contract on 12 October 1972, twenty-two days after the final delivery date provided for in the contract, when defendant refused to make further deliveries under the contract.
Plaintiff further alleges that deliveries, a total of 6,747.12 bushels, were made from 8 September to 12 October 1972 “pursuant to . . . [the] written contract.” Plaintiff submitted the affidavit of his truck driver in which he stated that he “picked up a load of corn from . . . [the] farm on September 23, 1972, pursuant to the written contract....”
G.S. 1A-1, Rule 56(e), relating to summary judgment contains the following provision:
“ . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial....”
The plaintiff may not rely on the bare allegations of his complaint. Peterson v. Winn-Dixie, 14 N.C. App. 29, 187 S.E. 2d 487 (1972).
The burden is on the plaintiff to show that he offered to perform his part of the agreement, or that such offer was rendered unnecessary by the refusal of the defendant to comply, before an action will lie for its breach. McAden v. Craig, 222 N.C. 497, 24 S.E. 2d 1 (1943).
“Where the pleadings or proof disclose that no cause of action exists, a summary judgment may be granted.” Harrison Associates v. State Ports Authority, 280 N.C. 251, 257, 185 S.E. 2d 793, 796 (1972). We find that the trial court was correct in entering summary judgment for defendants.
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.