Taylor v. Gibbs

150 S.E.2d 506 (1966)

268 N.C. 363

C. W. TAYLOR v. Donald S. GIBBS.

No. 366.

Supreme Court of North Carolina.

October 19, 1966.

George R. Kornegay, Jr., Mount Olive, Douglas P. Connor, Mt. Olive, for defendant appellant.

No counsel contra.

*507 PER CURIAM.

The contract provides for the payment of "sure-rent" by the defendant,that is, certain and unconditional payment. It provides only one event that might relieve him: the reduction of the tobacco acreage. The defendant admits that this did not occur, but contends that putting acreagepoundage control into effect has the same result and that he should be absolved. However, in his Answer the defendant says that it was not anticipated by the parties and in his brief says "it was totally unanticipated by the parties at the time the contract was made." In substance he asks that the plaintiff be affected by an event that was totally unanticipated by him and by the defendant. If the parties had anticipated a development or government action similar to the acreage-poundage control, it should have been inserted as a part of the agreement. Since they did not, the law cannot bind the plaintiff to an unforeseen and unexpected eventuality not within the contemplation of either party.

The case of Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 127 S.E.2d 539, refers to several decisions in which the position of the lower court is upheld. From it we quote: "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. Hartford Acc. & Indemnity Co. v. Hood, 226 N.C. 706, 710, 40 S.E.2d 198. It is the province of the courts to construe and not to make contracts for the parties. Williamson v. Miller, 231 N.C. 722, 727, 58 S.E.2d 743; Green v. Fidelity-Phenix Fire Insurance Co., 233 N.C. 321, 327, 64 S.E.2d 162. The terms of an unambiguous contract are to be taken and understood in their plain, ordinary and popular sense. Bailey v. Life Insurance Co., 222 N.C. 716, 722, 24 S.E.2d 614, 166 A.L.R. 826."

Judge Bone's ruling is

Affirmed.