Capital Outdoor Advertising, Inc. v. Harper

172 S.E.2d 793 (1970)

7 N.C. App. 501

CAPITAL OUTDOOR ADVERTISING, INC. v. Robert HARPER.

No. 7010SC6.

Court of Appeals of North Carolina.

April 1, 1970.

*794 Sanford, Cannon, Adams & McCullough, by J. Allen Adams, Raleigh, for plaintiff-appellee.

Crisp & Twiggs, by Howard F. Twiggs, Raleigh,, for defendant-appellant.

HEDRICK, Judge.

The plaintiff seeks to recover damages for the breach of a contract for the lease of two highway signs for a period of nine years.

"A lease for a term of years is personal property. And, hence, it is governed by the rules of law applicable to personal property, and not by the requirements of law for the conveyance of real property." 5 Strong, North Carolina Index 2d, Landlord and Tenant, § 2; Moche v. Leno, 227 N.C. 159, 41 S.E.2d 369 (1947).

The appellant contends that the alleged lease in this case is void because the description of the real estate upon which the signs were to be located was too vague, uncertain and indefinite to constitute a valid agreement and that the trial judge erred in overruling his demurrer to the complaint. The appellant, in his brief, cites numerous North Carolina cases which deal with the sufficiency of descriptions. In each of the cases cited the Court was concerned with the construction of executory contracts for the conveyance of real property. In Farmer v. Batts, 83 N.C. 387 (1880), cited by the appellant, there was an action to enforce the specific performance of an executory contract for the sale of land. The description of the property was "* * * one tract of land containing one hundred and ninety three acres, more or less, it being the interest in two shares adjoining the lands of James Barnes, Eli Robbins and others." At the trial the defendant objected to evidence which was offered by the plaintiff to identify the property. When the objection was sustained and the evidence excluded, the plaintiff submitted to a nonsuit and appealed. After a thorough review of the cases which involved descriptions, the court held that the description of the property which was the subject of the contract was not so fatally defective as to be so declared by the court and withdrawn from the jury and that the nonsuit was not proper.

"Contracts are executed or executory. A contract is executed where everything that was to be done is done, and nothing remains to be done. * * * An executory contract is one where it is stipulated by the *795 agreement of minds, upon a sufficient consideration, that something is to be done or not to be done by one or both the parties." Farrington v. Tennessee, 95 U.S. 679, 683, 24 L. Ed. 558 (1878).

In the present case it is apparent that the plaintiff had performed all of its obligations. The highway signs, approved and accepted by the defendant, have been constructed and erected, the defendant has paid seven months rental under the terms of the lease and has received benefits from the signs. In addition, the plaintiff continued to light these two highway signs under the terms of the lease agreement for at least twenty months after the defendant ceased paying rent and until a successor restaurant complained about the lighting of these signs. The plaintiff has continued to carry insurance on these signs, pay the electric bill, land rents and sales tax to the State of North Carolina for the rental of the signs and in all ways has offered and stands ready to perform the obligations and duties of its assignor under the terms of the lease agreement.

There have been few cases decided which involve the issue raised by the appellant; however, it is settled law in North Carolina that a party will not be allowed to accept benefits which arise from certain terms of a contract and at the same time deny the effect of other terms of the same agreement. Shuford v. Asheville Oil Co., 243 N.C. 636, 91 S.E.2d 903 (1956). In 32 Am.Jur., Landlord and Tenant, § 40, we find the following:

"In the few cases in which the question has been raised, it has uniformly been held or recognized, though not always in precise terminology, that a lessee is estopped to assert the invalidity of a lease because of irregularity or insufficiency of the description of the premises where he has gone into possession of the premises under the lease and has paid the stipulated rent, or otherwise exercised control over the premises."

In Beckett v. City of Paris Dry Goods Co., 14 Cal. 2d 633, 96 P.2d 122 (1939), the Court said that while a lease must include a definite description of the property leased, where a person goes into possession under a contract containing an ambiguous or uncertain description of the property and pays the agreed rent, it will be enforced as a lease just as if the parties had acted upon it as relating to particular premises. See also 84 A.L.R.2d 922. In the present case the appellant, Harper, has paid the stipulated rent and has been, in effect, placed in possession of the premises by the plaintiff's assignor. The contract has been fully and wholly executed by the lessor by constructing and erecting the highway signs according to the terms of the lease and the defendant, having accepted the benefits of these signs, will not now be heard to repudiate the validity of the lease for any uncertainty in the description of the premises.

We hold that the court below did not commit error in overruling the appellant's demurrer and that the judgment should be

Affirmed.

CAMPBELL and PARKER, JJ., concur.