Durham v. Hale

398 S.E.2d 911, 101 N.C. App. 204, 1990 N.C. App. LEXIS 1214

• Court: Court of Appeals of North Carolina
• Decided: December 18, 1990
• Docket: No. 9012DC368
• Status: Published

Opinions

HEDRICK, Chief Judge.

By their two assignments of error brought forward and argued on appeal, defendants’ principal contention is that the findings of fact made by the trial judge are not supported by the evidence and that the conclusions of law drawn therefrom do not support the judgment entered. We disagree.

Defendants argue that the trial judge “misconstrued” the agreement between the parties with respect to the sale and purchase of the property. In their brief, defendants state “[t]he trial court, under the guise of construction, had no power to write into the contract between [plaintiff] and [defendants] any provision that was not there in fact or by implication of law.”

It is well settled that where the terms of a written contract are unambiguous, the interpretation is a question of law; but when the terms of the contract are ambiguous, or leave something to be decided, it is for the finder of fact to construe the contract. MAS Corp. v. Thompson, 62 N.C. App. 31, 302 S.E.2d 271 (1983); Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962).

In the present case, Judge Cherry was the “finder of fact,” and his findings and conclusions with respect to the terms of the agreement between the parties were amply supported by the evidence presented. Therefore, the judgment of the trial court will be affirmed.

Affirmed.

Judge LEWIS concurs. Judge WYNN dissents.