Cox v. Funk

255 S.E.2d 600 (1979)

Kenneth D. COX and wife, Linda G. Cox v. Guy FUNK and wife, Harriet B. Funk.

No. 7821SC705.

Court of Appeals of North Carolina.

June 19, 1979.

*601 Robert D. Hinshaw, Winston-Salem, for plaintiffs-appellants.

Blackwell, Blackwell, Canady & Eller by Jack E. Thornton, Jr., Winston-Salem, for defendants-appellees.

VAUGHN, Judge.

The sole assignment of error in this case is directed to the entry of summary judgment in favor of defendants. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Rule 56(c), North Carolina Rules of Civil Procedure. The crucial question in this case is whether the provision, "Subject to closing of house at 900 Hawthorne Rd. Sept 15, 1977" is a condition precedent to the closing of the contract to purchase the Coxes' house. If so, from the facts presented in the pleadings, affidavits, and exhibits, summary judgment was appropriately entered because it was apparent that the sale of the Funks' house would not be consummated prior to the closing date on the Coxes' home.

"A condition precedent is a fact or event, `occurring subsequently to the making of a valid contract, that must exist or occur before there is a right to immediate performance, before there is a breach of contract duty, before the usual judicial remedies are available.'" (Citations omitted.) Parrish Tire Co. v. Morefield, 35 N.C.App. 385, 387, 241 S.E.2d 353 (1978).

In entering into a contract, the parties may agree to any condition precedent, the performance of which is mandatory before they become bound by the contract. Federal Reserve Bank v. Manufacturing Co., 213 N.C. 489, 196 S.E. 848 (1938). The contract "may be conditioned upon the act or will of a third person." Federal Reserve Bank v. Manufacturing Co., supra, at 493, 196 S.E. at 850. Conditions precedent are not favored by the law and a provision will not be construed as such in the absence of language clearly requiring such construction. *602 Price v. Horn, 30 N.C.App. 10, 226 S.E.2d 165, cert. den., 290 N.C. 663, 228 S.E.2d 450 (1976).

We find it unquestionable that this clause was a condition precedent to the closing of the Cox house. No other reason can be given for its presence in the contract. Furthermore, it is a reasonable provision in light of the fact that the defendants would be forced to carry two mortgages if the Foxes' financing could not be arranged in time to close on the Funks' house before the closing of the contract in question.

It is apparent from the pleadings and affidavits introduced that the Funks' house could not be closed prior to the closing of the Coxes' even though there was a tentative agreement to extend the closing on the Cox house until 28 September. The written extension submitted to the defendants by the Foxes' brokers provided for closing on 6 October but this date was not guaranteed. We find that this condition precedent failed to materialize and, therefore, defendants did not breach a contractual duty.

Plaintiffs argue that time was not of the essence and that defendants were under a duty to make a good faith effort to sell their home within a reasonable time. These arguments do not affect the question at issue. Even if time were not of the essence, the condition precedent must still be fulfilled and the record indicates that it could not be fulfilled. Furthermore, there is no evidence to support a contention that the condition precedent failed due to an absence of good faith on the part of the defendants. We, therefore, affirmed the trial court's order granting summary judgment in favor of defendants.

Affirmed.

CLARK and CARLTON, JJ., concur.