The issues on appeal are whether the trial court erred by:
(I) denying plaintiffs' motion for directed verdict; (II)
submitting the second issue to the jury; and (III) denying
plaintiffs' post-trial motions.
Plaintiffs first argue that the trial court erred by denying
their motion for directed verdict. Plaintiffs assert that theywere entitled to judgment in their favor because they were prepared
to close the sale of Lot 111 in a “reasonable time” and because
defendant never tendered a deed or demanded performance and waived
or extended any deadline for closing. We disagree.
When a party moves for directed verdict, the trial court must
determine whether the evidence, when viewed in the light most
favorable to the non-movant, is sufficient to submit the case to
the jury.
Satterfield v. Pappas, 67 N.C. App. 28, 30-31, 312
S.E.2d 511, 513,
disc. review denied, 311 N.C. 403, 319 S.E.2d 274
(1984). “The motion may be granted only if the evidence is
insufficient to justify a verdict for the non-movant as a matter of
law.”
Id. at 31, 312 S.E.2d at 513. A non-movant's case is
sufficient to withstand judgment as a matter of law where “there is
more than a scintilla of evidence supporting each element of
[their] case[.]”
Broyhill v. Coppage, 79 N.C. App. 221, 226, 339
S.E.2d 32, 36 (1986). Furthermore, “[a] verdict may never be
directed when there is conflicting evidence on contested issues of
fact.”
DeHart v. R/S Financial Corp., 78 N.C. App. 93, 98, 337
S.E.2d 94, 98 (1985),
disc. review denied, 316 N.C. 376, 342 S.E.2d
893 (1986).
This Court has previously recognized that “[t]ime is
ordinarily not of the essence of a contract of sale and purchase.”
Furr v. Carmichael, 82 N.C. App. 634, 638, 347 S.E.2d 481, 484
(1986). Therefore, where a contract does not specify the time
within which a right to purchase should be exercised, “the right
must be exercised within a reasonable time.”
Id. Even where acontract includes a specific time or date of purchase, if no
provision of the contract expressly indicates that time is of the
essence, the parties are given a reasonable time to close the sale
and purchase.
Id. at 639, 347 S.E.2d at 484;
see also Cadillac-
Pontiac Co. v. Norburn, 230 N.C. 23, 29, 51 S.E.2d 916, 920 (1949)
(concluding that where a contract provided for closing on or before
20 November 1945, time was not of the essence because “[t]he
agreement itself is not worded to avoid the contract altogether or
expressly vitiate it, if settlement is not made at that time.”);
Walker v. Weaver, 23 N.C. App. 654, 657, 209 S.E.2d 537, 539 (1974)
(holding that time was not of the essence where the contract
provided that it was “to be definitely closed within a period of --
30 -- days” because the statement did not indicate an intention of
the parties that all rights and obligations were to terminate if
sale was not closed within prescribed time). “Though the
determination of reasonable time is generally a mixed question of
law and fact and thus for the jury, it becomes a question of law
when the facts are simple and admitted and only one inference can
be drawn.”
Furr, 82 N.C. App. at 638, 347 S.E.2d at 484.
In
Furr, we held that the trial court erred by granting a
directed verdict in favor of the plaintiffs, noting that “[w]hen
the question of granting a directed verdict is a close one, the
better practice is for the trial judge to reserve his decision on
the motion and allow the case to be submitted to the jury.”
Id. at
639, 347 S.E.2d at 485. The uncontradicted evidence in
Furr
demonstrated that on 25 August 1983, the parties executed acontract for sale of a house and lot. Forty-nine days later, one
defendant refused to accept the purchase price tendered by the
plaintiffs. The plaintiffs filed suit against the defendants,
seeking specific performance of the contract's terms. Following
presentation of the evidence, the trial court entered a directed
verdict in favor of the plaintiffs, thereby ruling on the issue of
whether forty-nine days was a reasonable amount of time to close on
the property. On appeal, this Court reversed, concluding that in
light of the defendant's testimony that she attempted to close on
the property several times in September, “we are unable to say that
forty-nine (49) days was a reasonable time as a matter of law
within which to close on this property.”
Id. We noted that “more
than one inference c[ould] be drawn from the facts presented” in
the case, and that therefore, “[t]he issue of reasonable time is
for the jury.”
Id.
We conclude that the reasoning of
Furr applies to the instant
case. As discussed above, the contract in the instant case did not
provide a specific closing date. Instead, it required the parties
to execute “any and all documents and papers necessary in
connection with closing and transfer of title on or before 2 weeks
after permits issued,” and it provided that the sale of defendant's
land was conditional upon plaintiffs being “able to obtain [a]
building permit prior to closing.” Nothing in the contract stated
that time was of the essence, and there was no indication that a
failure to close within a specific time period would void or
continue either of the parties' obligations. At trial, defendanttestified that following the parties' execution of the contract,
Barber “got in contact” with him and said, “we want to close right
away[.]” Defendant testified that he called plaintiffs' attorney's
office “several times . . . to try to get [Barber] to close” prior
to June 2001. Defendant further testified that Barber advised him
in December 2001 “that he was ready to close and it would be just
a short while[.]” However, plaintiffs did not schedule a closing
until 2 August 2002, approximately one month after plaintiffs
received a CAMA permit for the lot. Following the failure of the
scheduled closing, plaintiffs received a building permit for Lot
111 on 20 August 2002. In light of the foregoing, we conclude that
the trial court did not err by denying plaintiffs' motion for
directed verdict.
Plaintiffs next argue that the trial court erred by
instructing the jury regarding prevention of performance.
Plaintiffs assert that the instruction was improper because the
doctrine was inapplicable to the instant case
. We agree.
The record in the instant case reveals that, after explaining
that the verdict sheet would contain two issues, the trial court
instructed the jury in pertinent part as follows:
Issue two. The second issue reads, “Was the
defendant's failure to perform a material
[term] of the contract, dated August 18, 2002,
by failing to convey to the plaintiffs the
lands as required by the contract caused by
the conduct of the plaintiffs?”
You will answer this issue only if you have
answered the first issue, “yes,” in favor of
the plaintiffs. On this issue, the burden of
proof is on the defendant. This means that
the defendant must prove, by the greaterweight of the evidence, that the plaintiffs
knowingly and without justification prevented
or hindered defendant's ability to perform a
material term of the contract by failing to
convey to the plaintiffs the lands as required
by the contract, which the plaintiffs contend
the defendant has breached. A person does not
breach a contract [where] a reason for his
noncompliance with a material term[] is the
other party's prevention or hindrance conduct.
Finally, as to this second issue, on which the
defendant has the burden of proof, if you
find, by the greater weight of the evidence,
that the defendant's failure to perform a
material term of the contract was caused by
the conduct of the plaintiffs, then it would
be your duty to answer this issue, “yes,” in
favor of the defendant. If, on the other hand
you fail to so find, then it would be your
duty to answer this issue, “no,” in favor of
the plaintiffs.
Although we note that defendant did not request this instruction
and that the trial court offered it over plaintiffs' objection, we
also note that “'[i]t is the duty of the [trial] court to charge
the law applicable to the substantive features of the case arising
on the evidence without special request and to apply the law to the
various factual situations presented by the conflicting evidence.'”
Griffin v. Watkins, 269 N.C. 650, 653, 153 S.E.2d 356, 359 (1967)
(quoting 4 Strong, N.C. Index, Trial § 33 (1961)). Nevertheless,
because we conclude that the instruction was not supported by the
evidence, we reverse the trial court's judgment.
“The doctrine of prevention is that 'one who prevents the
performance of a condition, or makes it impossible by his own act,
will not be permitted to take advantage of the nonperformance.'”
Propst Construction Co. v. Dept. of Transportation, 56 N.C. App.
759, 762, 290 S.E.2d 387, 388 (1982) (quoting
Harwood v. Shoe, 141N.C. 161, 163, 53 S.E. 616, 616 (1906)). “However, in order to
excuse nonperformance, the conduct on the part of the party who is
alleged to have prevented performance 'must be wrongful, and,
accordingly, in excess of his legal rights.'”
Goldston Brothers v.
Newkirk, 233 N.C. 428, 432, 64 S.E.2d 424, 427 (1951) (quoting Page
on Contracts, Vol. 5, § 2919, p. 5145). Furthermore, where the
prevention of performance was caused by an independent act of a
third party, the other party to the contract is not excused from
performing his or her obligations.
See id.
In the instant case, defendant contends that Barber “prevented
performance by his conduct of not closing until he pre-sold the lot
or had a buyer.” However, we note that at trial, defendant
testified on cross-examination that he would have closed the sale
of the land on 2 August 2002. Defendant testified that he was
“concerned” about Barber buying and closing on lots near his, and
that he believed Barber was “stalling” him. The following exchange
thereafter occurred:
Q. You know now that he intended to close
with you the same day he closed with
[defendant's brother], but there was a
problem with the bank.
A. Well, I didn't close that day. The word
was, sir, let's close and get through
with it. Let's get it off the books.
And I did everything I could -- and he'll
tell you the same thing if he'll tell the
truth about it -- to try to get him to
close. I did. I did everything I -- and
if he'd have called me after the water
and sewage tap and said, I need another
thing that's going to cost you another 10
or -- another 500 or 600, I would have
probably got that too, because I wanted
to close.
Q. So when you left there and didn't close
that day, August [2] of 2002, when
[defendant's brother] closed, it wouldn't
have mattered what happened after that,
you weren't going to close?
A. I didn't think too much about it until
later on when the tax bills started
coming in and all that stuff, and I did,
that's when I started thinking about it,
because it was costing me more to hold
onto the property, and I had held onto it
for two years. . . .
In light of the record in the instant case, we are not
persuaded that defendant offered sufficient evidence to warrant an
instruction on performance prevention. As detailed above,
defendant testified that he would have closed the sale of the land
on 2 August 2002, and that he “didn't think too much” about closing
until his “tax bills started coming in” and reflecting a change in
the value of his property. It is undisputed that the closing on 2
August 2002 was prevented because of the independent actions of a
third party, the lending institution used by plaintiffs. There is
no indication that plaintiffs caused or contributed to the error.
Furthermore, there is no indication that plaintiffs engaged in any
“stalling” or “pre-selling” following the 2 August 2002 anticipated
closing. Instead, the record reveals that plaintiffs contacted
defendant several times in an effort to schedule a closing, and
that the closing was unsuccessful on the later-scheduled date due
to defendant's refusal to participate. In light of the foregoing,
we conclude that the record in the instant case does not support an
instruction regarding prevention of performance. Accordingly, we
hold that the trial court erred by instructing the jury on thedoctrine. Because the trial court's error requires reversal of its
judgment, we need not address plaintiffs' additional assignments of
error. Furthermore, because the jury concluded that defendant
breached the contract by refusing to convey his land to plaintiffs,
this cause is remanded to the trial court with instructions to
enter a new judgment in favor of plaintiffs.
Reversed.
Judges HUDSON and ELMORE concur.
Report per Rule 30(e).
Judge TIMMONS-GOODSON submitted this opinion for filing prior
to 31 October 2005.
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