Durham v. Hale
Durham v. Hale
Opinion of the Court
By their two assignments of error brought forward and argued on appeal, defendants’ principal contention is that the findings of fact made by the trial judge are not supported by the evidence and that the conclusions of law drawn therefrom do not support the judgment entered. We disagree.
Defendants argue that the trial judge “misconstrued” the agreement between the parties with respect to the sale and purchase of the property. In their brief, defendants state “[t]he trial court, under the guise of construction, had no power to write into the contract between [plaintiff] and [defendants] any provision that was not there in fact or by implication of law.”
It is well settled that where the terms of a written contract are unambiguous, the interpretation is a question of law; but when the terms of the contract are ambiguous, or leave something to be decided, it is for the finder of fact to construe the contract. MAS Corp. v. Thompson, 62 N.C. App. 31, 302 S.E.2d 271 (1983); Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962).
In the present case, Judge Cherry was the “finder of fact,” and his findings and conclusions with respect to the terms of the agreement between the parties were amply supported by the evidence presented. Therefore, the judgment of the trial court will be affirmed.
Affirmed.
Dissenting Opinion
dissenting.
I must respectfully dissent from the majority opinion in this case.
The appellants (hereinafter referred to as “buyers”) tendered an offer to purchase to the appellee (hereinafter referred to as “seller”) on 2 March 1988 to purchase seller’s mortgaged residence for the sum of $54,027.00. In connection with this offer, the buyers offered to assume an existing mortgage on the property in the amount of $38,911.00, thereby leaving a balance to the seller in the amount of $15,116.00. The contract stated that “the loan balance
Apparently, a second assumable mortgage existed on the residence. Also, the seller was in substantial default on both mortgages. In light of these additional facts, a handwritten proviso was put on the back of the contract stating:
Buyers to assume 2d mortgage which is held by Fleet Finance Co. in the amount of approximately 9,311.00.
If Seller moves before July 1st [R]ent for each month will be deducted from $2000.00
Buyers are actively engaged in real estate and purchasing said property for monetary gain.
Buyers to catch 1st and 2d mortgage^] payments up by the 17th of March 1988. (3,805.00)
Buyers will give Seller $2,000 July 1, 1988.
Is Joseph E. Hale /Estella Dunn
Is Robbie M. Hale
This proviso was signed by all parties at a time period that was not stated in either the contract or the record on appeal.
The trial court construed the contract as implying that the seller’s proceeds from the sale were to be the difference between the stated price and the outstanding mortgages, notwithstanding the buyers’ assumption of the arrearages. Moreover, the trial court did not address the express terms of the contract which provided that the seller was to receive from the buyers the sum of $2,000.00, less any deduction for any unpaid rent.
In my view, the contract expressly provided for the following result:
Selling price $54,027.00
Minus 1st mortgage 38,911.00
Minus 2nd mortgage 9,311.00
Minus amount in arrears 3,805.00
Balance to Seller (less other deductions) $ 2,000.00
Case-law data current through December 31, 2025. Source: CourtListener bulk data.