Copy Products, Inc. v. Randolph

303 S.E.2d 87 (1983)

COPY PRODUCTS, INC. v. Clyde C. RANDOLPH, Jr., Individually; Doris Green Randolph, Individually; and Randolph and Randolph, Attorneys and Counsellors at Law, a Partnership.

No. 8221DC502.

Court of Appeals of North Carolina.

June 7, 1983.

Paul A. Sinal, Winston-Salem, for plaintiff-appellant.

David F. Tamer, Winston-Salem, for defendant-appellee.

*88 ARNOLD, Judge.

The plaintiff lost this case on a G.S. 1A-1, Rule 50(a) motion for a directed verdict. On a directed verdict motion,

the court must consider the evidence in the light most favorable to the non-movant, deeming all evidence which tends to support his position to be true, resolving all evidentiary conflicts favorably to him and giving the non-movant the benefit of all inferences reasonably to be drawn in his favor.

Daughtry v. Turnage, 295 N.C. 543, 544, 246 S.E.2d 788, 789 (1978). W. Shuford, N.C. Civil Practice and Procedure § 50-5 (2d ed. 1981).

When considering the evidence in the light most favorable to the plaintiff, including resolving evidentiary conflicts in its favor, we conclude that the entry of a directed verdict for the defendants was improper.

First, the lease agreement between the parties could be seen as a valid contract. The essential contract elements of offer, acceptance, consideration, and no defenses to formation can be established by the evidence considered in the light most favorable to the plaintiff. As a result, we need not address the defendants' arguments that the lease was not executed in accord with corporate formalities, or that it was only an acceptance of an offer that the plaintiff made in a letter two months earlier. In addition, the defendants' contention that the earlier letter is part of the contract between the parties may fail under the parol evidence rule. See 2 Brandis, N.C.Evidence §§ 251-260 (2d rev. ed. 1982).

Second, assuming that the lease is a valid contract, as we must on this directed verdict motion, four terms of the lease point to a recovery by the plaintiff.

First, the defendants could not terminate the lease without the plaintiff's permission. They never had that permission and may be liable for liquidated damages as a result.

Second, not paying rent is default under the lease. Third, one remedy for default is accelerating the time for all unpaid rent. Finally, the lease provides that when the plaintiff terminates the lease, it can recover all due and unpaid rent and liquidated damages.

Our reversal of the grant of the directed verdict does not prohibit the defendants from raising their counterclaim at the new trial if they comply with the provisions of G.S. 1A-1, Rule 41. They also may argue any failure of the plaintiff to mitigate its damages.

Reversed and remanded.

HILL and BECTON, JJ., concur.