Parks v. Venters Oil Company

121 S.E.2d 850 (1961)

255 N.C. 498

Julia Mae PARKS and Corneva Bass v. VENTERS OIL COMPANY, Inc.

No. 164.

Supreme Court of North Carolina.

October 11, 1961.

*852 P. D. Herring and David J. Turlington, Jr., Clinton, for plaintiffs, appellants.

Hubbard & Jones, Clinton, for defendant, appellee.

BOBBITT, Justice.

The question presented is whether defendant, under the provisions of Section 4, *853 had the right and option, at any time during the term of the lease, to purchase the property from plaintiffs upon payment of $10,000 as purchase price therefor.

"Parties have the legal right to make their own contract, and if the contract is clearly expressed, it must be enforced as it is written. Brock v. Porter, 220 N.C. 28, 16 S.E.2d 410. `The contract is to be interpreted as written.' Jones v. Palace Realty Co., 226 N.C. 303, 305, 37 S.E.2d 906, 907. The `only office of judicial construction is to remove doubt and uncertainty.' 12 Am.Jur., Contracts, Sec. 229; McCain v. Hartford Live Stock Ins. Co., 190 N.C. 549, 130 S.E. 186; Jones v. [Palace] Realty Co., supra." Johnson, J., in Barham v. Davenport, 247 N.C. 575, 101 S.E.2d 367, 369.

Plaintiffs contend the provisions of Section 4 are indefinite, contradictory, disclose there was no "meeting of the minds of the parties," and are therefore void. Careful consideration of Section 4 impels the conclusion that this contention is without merit.

Section 4 consists of three interrelated sentences. True, the options granted plaintiffs and defendant, respectively, in the first and second sentences, standing alone, would be contradictory in that the exercise of one would necessarily preclude the exercise of the other. However, these sentences do not stand alone. The third sentence subordinates plaintiffs' option and gives defendant's option priority. Under its express terms, plaintiffs' option may be exercised only if (1) plaintiffs give written notice to defendant of their election to exercise their option, and (2) defendant then fails to exercise its option within sixty days from the receipt of such notice.

There is no limitation as to the time within which defendant is entitled to exercise the option granted to it by the second sentence of Section 4 unless and until defendant is notified in writing that plaintiffs have elected to exercise the option granted to them by the first sentence. If and when so notified, defendant's right to exercise its option is unimpaired. However, in such event, defendant must exercise its option within sixty days after receipt of such notice.

Plaintiffs contend the third sentence of Section 4 has no significance in the present factual situation. They base this contention on the fact plaintiffs have made no attempt to exercise the option granted to them in the first sentence. The contention is without merit. If defendant's right to exercise its option is unimpaired, except as to the limitation of time for the exercise thereof, by written notice of plaintiffs' election to exercise their option, it is not impaired by plaintiffs' failure to give such notice. It seems wholly unreasonable it was intended plaintiffs could defeat defendant's right to exercise its option simply by refraining from attempting to exercise their option.

Plaintiffs contend the lease, when considered in its entirety, discloses the provisions of Section 4 are indefinite and contradictory. But the only other provision of the lease to which plaintiffs direct attention is Section 7 thereof. Section 7 provides:

"7. If the parties of the first part should purchase the building as herein provided it is understood and agreed that Venters Oil Company, Inc. shall have, and it is hereby given, the right to sell and dispense its products upon the premises and the parties of the first part shall not lease or sell the same to any other person or party during the remainder of the term of this Lease except upon written agreement with said person or party that he will or it will sell and dispense only such products as may be agreed upon with Venters Oil Company, Inc., the party of the second part. This covenant and agreement shall be construed as one running with the land."

*854 In our view, and we so hold, the provisions of Section 7 cast no light on the proper construction of the provisions of Section 4. Section 7 would apply if, but only if, plaintiffs had exercised their option under circumstances giving them a right to do so under Section 4 as construed herein.

The decision reached is that the court's conclusions of law are correct and that the judgment of the court below should be, and it is, in all respects affirmed.

Affirmed.