East Coast Development Corp. v. ALDERMAN-250

228 S.E.2d 72 (1976)

30 N.C. App. 598

EAST COAST DEVELOPMENT CORP. v. ALDERMAN-250 CORPORATION.

No. 7615SC61.

Court of Appeals of North Carolina.

September 15, 1976.

*77 Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by Josiah S. Murray, III, Durham, for plaintiff.

Murdock, Jarvis, Johnson & LaBarre by Jerry L. Jarvis, Durham, for defendant.

MARTIN, Judge.

Defendant's Appeal

Defendant contends that since the contract of 23 August 1968 fixed no time for its duration it was subject to termination by ether party upon the giving of reasonable notice, and that 60 days notice of termination after the expiration of 4 years and 3 months from the execution of the contract was reasonable.

North Carolina follows the generally accepted view that a contract of indefinite duration may be terminated by either party on giving reasonable notice. See Scarborough v. Adams, 264 N.C. 631, 142 S.E.2d 608 (1965); Rubber Co. v. Distributors, 253 N.C. 459, 117 S.E.2d 479 (1960); Fulghum v. Selma and Griffis v. Selma, 238 N.C. 100, 76 S.E.2d 368 (1953); Superior Foods v. Super Markets, 24 N.C.App. 447, 210 S.E.2d 900 (1975), aff'd 288 N.C. 213, 217 S.E.2d 566 (1975); City of Gastonia v. Power Company, 19 N.C.App. 315, 199 S.E.2d 27 (1973). To avoid injustice, however, this rule is subject to the qualification that such a contract may not be unilaterally terminated until it has been in effect for a reasonable time, taking into account the purposes the parties intended to accomplish. Scarborough v. Adams, supra; City of Gastonia v. Power Co., supra; Atkinson v. Wilkerson, 10 N.C.App. 643, 179 S.E.2d 872 (1971).

The North Carolina position is set forth in 2 Strong, N.C. Index 2d, Contracts, § 17, p. 322, as follows:

"As a general rule, where no time is fixed for the termination of a contract it will continue for a reasonable time, taking into account the purposes that the parties intended to accomplish; and where the duration of the contract cannot be implied from its nature and the circumstances surrounding its execution, the contract is terminable at will by either party on reasonable notice to the other."

The question of whether there was a "reasonable time" under the circumstances of the instant case on appeal was a question of fact under the test stated in Hardee's v. Hicks, 5 N.C.App. 595, 599, 169 S.E.2d 70, 73 (1969). In that case, the Court said, ". . . `if different inferences may be drawn, or the circumstances are numerous and complicated, and such that a definite legal rule cannot be applied to them, then the matter [of what is a reasonable time] should be submitted to the jury. It is only when the facts are undisputed and different inferences cannot be reasonably drawn from them, that the question ever becomes one of law.' (Citations omitted.)" In the case now before this Court, the trial judge, sitting without a jury and as trier of all facts, found as a fact that "[a] reasonable period of time in which to accomplish or to expect to accomplish the objectives of the contract and agreement of August 23, 1968, had not expired as of November 30, 1972 . . ."; the trial judge further found as an ultimate finding of fact and conclusion of law ". . . that the aforesaid letter notice of intended termination was legally ineffective to terminate the subject contract and agreement of August 23, 1968, with reference to the Roberson property and Eastgate Shopping Center property and that a period of four years and three months was not a reasonable period, in view of the difficulty of marketing these particular properties, within which the parties to the subject contract and agreement of August 23, 1968 could reasonably expect to accomplish the goals and purposes of the contract."

The "difficulty of marketing these particular properties" was a circumstance which *78 would allow for different inferences to be drawn. As to what was or was not a reasonable period of time, we agree that the finding by the trial court "that a reasonable period of time . . . had not expired . . ." is supported by the evidence.

The defendant next contends the trial court erred in concluding as a matter of law that defendant was not entitled to augment its cost basis for the Crowell-Little property by either capitalization of interest expense or by increment adjustment for payment of ad valorem taxes. Defendant argues that the contract reasonably implies that defendant would be able to recover from sale proceeds costs unavoidably incurred to maintain the property; otherwise, defendant's share of profits would by systematically diminished with the mere passage of time.

It is elementary that when a contract is plain and unambiguous the construction of the agreement is a matter of law for the court. See 2 Strong, N.C. Index 2d, Contracts, § 12, p. 311. This Court summarized the applicable law on this point as follows:

"In the case of Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E.2d 539, it is stated: `When the language of a contract is clear and unambiguous, effect must be given to its terms, and the court, under the guise of constructions, cannot reject what the parties inserted or insert what the parties elected to omit. (Citation omitted.) It is the province of the courts to construe and not to make contracts for the parties. (Citations omitted.) The terms of an unambiguous contract are to be taken and understood in their plain, ordinary and popular sense. (Citation omitted.)'" Peaseley v. Coke Co., 12 N.C.App. 226, 231, 182 S.E.2d 810, 813 (1971).

In the instant case, the contract provides that ". . . Alderman will first recover its cost basis from the proceeds of each individual sale and any proceeds over and above said cost basis on said individual sale shall be equally divided between Alderman and East Coast . . .." In addition, paragraph 2 of the contract clearly delineates the cost basis of the Crowell-Little property as $150,388.24. The language of the contract is clear. The defendant cannot after the fact insert into the contract a provision for augmentation of cost basis when the express language of the contract does not so provide and the law does not imply such a provision. Defendant's second assignment of error is overruled.

By its third assignment of error defendant contends the plaintiff was not entitled to punitive damages by reason of defendant's failure to pay money due plaintiff pursuant to the terms of their contract. The court found:

"The failure of the Defendant to make an unconditional tender to the Plaintiff of a share of the net sale proceeds realized and received by the Defendant with respect to the sale of the Crowell-Little Real Estate Co. property, at least to the extent of thirty-one thousand one hundred twenty eight and 02/100 dollars ($31,128.02) based upon facts admitted by the Defendant, and the failure of the Defendant to distribute and pay over to the Plaintiff the sum of seventy-four thousand six hundred fifty-five and 88/100 dollars ($74,655.88) based upon facts found by the Court, constituted a conversion by the Defendant of Plaintiff's share in the net sale proceeds realized and received by the Defendant with respect to the sale of the Crowell-Little Real Estate Co. property."

Defendant contends the plaintiff is not entitled to punitive damages for conversion because plaintiff failed to allege or to offer any evidence establishing on the part of defendant any malice, gross or wilful wrong, or conduct evincing a reckless disregard of plaintiff's rights and that while the court below concluded that defendant's conduct was of such nature, the court made no findings of fact to support such a conclusion. We agree.

Punitive damages may be awarded when an act is done with wilfulness or *79 under circumstances of rudeness, oppression, or reckless and wanton disregard of the plaintiff's rights. See Clouse v. Motors Inc., 14 N.C.App. 117,187 S.E.2d 398 (1972). While it is not required that punitive damages be specially pleaded by that name in the complaint, it is necessary that the plaintiff allege ". . . facts or elements showing the aggravating circumstances which would justify the award of punitive damages, for instance, actual malice, or oppression, or gross and willful wrong or negligence, or a reckless and wanton disregard of plaintiff's rights. (Citations omitted.)" Cook v. Lanier, 267 N.C 166, 172, 147 S.E.2d 910, 915 (1966). Moreover, "[p]unitive or exemplary damages are never awarded on the ground that the plaintiff has a right thereto. (Citation omitted.) With the exception of a breach of promise to marry, punitive damages are not given for breach of contract. (Citations omitted.)" King v. Insurance Co., 273 N.C. 396, 398, 159 S.E.2d 891, 893 (1968).

In 25 C.J.S. Damages § 120, p. 1126, it is said:

"As a general rule, in the absence of statutory authority, exemplary damages are not recoverable in actions for the breach of contracts, irrespective of the motive on the part of defendant which prompted the breach . . .. No more can be recovered as damages than will fully compensate the party injured. . . "Thus where the acts constituting a breach of contract also amount to a cause of action in tort, there may be a recovery of exemplary damages on proper allegations and proof. As sometimes stated, exemplary damages are recoverable for a tort committed in connection with, but independently of, the breach of contract, where the essentials of an award of such damages are otherwise present, the allowance of such damages being for the tort and not for the breach of contract. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence which amounts to an independent tort."

The only finding that has any bearing on this issue relates to the tender by the defendant of the sum it conceded to be due the plaintiff on 30 November 1972. From this finding, the trial court proceeded to conclude that since the tender was not unconditional then the tender constituted a conversion of the sum due. This finding, considered in light of the evidence presented, was not sufficient to support the trial court's conclusion that the defendant's actions amounted to wilful and malicious conduct entitling plaintiff to punitive damages.

We agree with the court's findings that defendant was unable to justify its asserted claim to an augmented cost basis in the Crowell-Little property by reference to any contractual provision pertinent to the question and that tender of its check with the endorsed legend, if accepted under such conditions would amount to a full and complete discharge of the debt. However, this does not amount to evidence of insult, indignity, malice, oppression or bad motive. We do not think the law requires that punishment should be meted out in this action. Defendant's third assignment of error is sustained and that part of the judgment awarding plaintiff punitive damages is vacated.

Plaintiff's Appeal

Plaintiff assigns as error the action of the court in allowing for augmentation of defendant's contract cost basis in and with respect to the Roberson property.

The contract provides: "It is understood by and between the parties hereto that any future development costs mutually agreed upon by the parties hereto which are expended on said property by Alderman shall be added to Alderman's cost basis and also will be added to the minimum sales figure set forth in paragraph 2."

The contract does not specify any particular form of agreement for expenditure of *80 development costs, and it does not specify that the amount of such costs must be mutually agreed upon prior to the expenditure. The plaintiff does not contend that the expenses incurred by the defendant to bring water and sewer facilities to the site were not incurred, were unreasonable, or were unnecessary. The plaintiff does deny that it agreed to the extension of water and sewer utilities to the premises.

The trial court found as a fact that:

"[p]rior to November 30, 1972, the defendant expended the sum of forty-six thousand four hundred ninety-seven and 51/100 dollars ($46,497.51) in development costs incident to the extension and installment of water and sewer facilities for the Roberson property . . . and . . . that Alderman-250 Corporation had a cost basis in the Roberson Property on November 30, 1972 in the amount of one hundred two thousand six hundred eighty-five and 10/100 dollars ($102,685.10)."

Based upon these findings of fact, the trial court made the ultimate findings of fact and conclusions of law to the effect that "Plaintiff mutually agreed with Defendant for Defendant to incur a development cost with respect to the Roberson property in the amount of forty-six thousand four hundred ninety-seven and 51/100 dollars ($46,497.51) for the extension of water and sewer service lines to the Roberson property," and that "Defendant is entitled to augment its contract cost basis for the Roberson property, such contract cost basis being fifty-six thousand one hundred eighty-seven and 59/100 dollars ($56,187.59) . . ., by forty-six thousand four hundred ninety-seven and 51/100 dollars ($46,497.51) the amount of the development cost mutually agreed to by the plaintiff and the defendant with respect to the Roberson property.. . ."

The principle that a trial court's findings of fact are conclusive if supported by any competent evidence and that a judgment supported by such findings must be affirmed even though there is evidence contra is well established. In Vaughn v. Tyson, 14 N.C.App. 548, 550, 188 S.E.2d 614, 616 (1972), this Court stated that:

"In a nonjury trial the findings by the court have the force and effect of a verdict of a jury and are conclusive on appeal if supported by any competent evidence notwithstanding that there is evidence contra which would sustain findings to the contrary. (Citations omitted.)"

The evidence submitted in the instant case is plenary to support the findings of fact and conclusion of law based thereon. This assignment of error is overruled.

Plaintiff next assigns as error the action of the court in finding as a fact and concluding as a matter of law that, as of November 30, 1972, a one-fourth undivided interest in the Roberson property had a fair market value of $250,000.

Upon careful review we think and so hold that there was competent evidence as to the fair market value of the Roberson property upon which the trial court could arrive at a value of $250,000.

"When a trial by jury is waived, and where different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial judge. (Citation omitted.)" Repair Co. v. Morris & Associates, 2 N.C.App. 72, 75, 162 S.E.2d 611, 613 (1968). This assignment of error is overruled.

Finally, plaintiff contends the measure of damages awarded with respect to the Roberson property was incorrect and should have been one-half (½) of the difference between defendant's contract cost basis and the greater of (a) the amount for which the property could have been sold in the exercise of reasonable care and judgment or (b) the contract minimum sales price, because plaintiff is entitled to be put in the same position as if the contract had been performed by defendant.

The formula adopted by the trial court is predicated upon a determination of the fair market value of the Roberson property *81 as of the date defendant repudiated its agreement with the plaintiff, and this formula was disapproved and rejected in Newby v. Realty Co., 180 N.C. 51, 103 S.E. 909 (1920); and in Cook v. Lawson, 3 N.C.App. 104, 164 S.E.2d 29 (1968). The correct formulation of remedy for recovery of damages is bottomed upon the premise that the plaintiff is entitled to be put in the same position as it would have been if the contract had been performed, and to recover what has been lost by non-performance, rather than the difference between the option price or cost basis and the market value as of the time of repudiation. See Newby v. Realty Co., supra, and Cook v. Lawson, supra.

However, plaintiff concedes that in its complaint it prays for a presumed sale at the fair market value on the date of breach. The damages awarded were those requested by plaintiff in its complaint. No evidence of the amount for which the property could have been sold was presented at the trial and the plaintiff's failure to object to the measure of damages at trial constitutes invited error. See Smith v. Simpson, 260 N.C. 601, 133 S.E.2d 474 (1963); In re Will of McGowan, 235 N.C. 404, 70 S.E.2d 189 (1952); Johnson v. Sidbury, 226 N.C. 345, 38 S.E.2d 82 (1946). Plaintiff's assignment of error is overruled.

Defendant's Appeal Affirmed in part and reversed in part.

Plaintiff's Appeal Affirmed.

BRITT and PARKER, JJ., concur.