Walker v. Weaver

209 S.E.2d 537 (1974)

23 N.C. App. 654

David A. WALKER and wife, Patsy B. Walker v. Edward WEAVER, d/b/a Weaver Realty Company, et al.

No. 745DC118.

Court of Appeals of North Carolina.

November 20, 1974.

*538 Poisson, Barnhill, Butler & Martin by Algernon L. Butler, Jr., Wilmington, for plaintiff appellants.

James L. Nelson and James D. Smith, Wilmington, for defendant appellees.

PARKER, Judge.

"It is settled law that where a party agrees to purchase real estate and pays a part of the consideration therefor and then refuses or becomes unable to comply with the terms of his contract, he is not entitled to recover the amount theretofore paid pursuant to its terms." Scott v. Foppe, 247 N.C. 67, 70, 100 S.E.2d 238, 240 (1957). Such is the rule recognized in this and in a *539 majority of American jurisdictions. Annot., 31 A.L.R.2d 8. As is noted in that Annotation, p. 19, because application of this rule may at times produce a harsh result, a minority of jurisdictions refuses to permit the vendor to retain money paid on the contract in excess of damage sustained from the breach. We need not, however, now consider the merits of the minority view, since application of the "settled law" to the present litigation produces no harsh result.

Applying the settled law, the judgment appealed from should be affirmed. Appellants' assignments of error to certain of the court's findings of fact and conclusions of law either call into question certain minor discrepancies as to dates, which we find immaterial, or are predicated upon appellants' contention that time was of the essence of the contract and, the loan proceeds being unavailable within the time set for closing, plaintiffs were excused from all further obligation to perform. We do not think that time was of the essence of the contract. The written agreement was apparently prepared in the office of the real estate agency and was somewhat ineptly drawn. The only reference to time of closing was the statement that the contract was "to be definitely closed within a period of 30 days," a statement which in our opinion falls short of indicating any intention of the contracting parties that all rights and obligations were to terminate if, through no fault of either vendors or vendees, the sale could not be closed exactly within the time period prescribed. Nothing in plaintiffs' evidence indicates that when the contract was drawn the time of closing was of major concern. Plaintiff David A. Walker testified, "I did not have anything to do with setting the 30 days, it was typed in."

We find the court's essential findings of fact to be supported by competent evidence and that these in turn support its conclusion of law that plaintiffs' failure to close amounted to a breach of contract. This conclusion of law was in itself sufficient to support the judgment rendered. Holding as we do, that time was not of the essence of the contract, the court's additional conclusion that "the conduct of the parties amounted to a modification of the contract to extend closing for a reasonable period of time," was merely surplusage, and we need not determine whether it was correct.

The judgment appealed from is

Affirmed.

BROCK, C. J., and BALEY, J., concur.