Sides v. . Tidwell

5 S.E.2d 316, 216 N.C. 480, 1939 N.C. LEXIS 19

• Court: Supreme Court of North Carolina
• Decided: November 8, 1939
• Status: Published

Opinion

Winborne, J.

Appellants’ challenge to the judgment below is directed solely to the refusal of the court to grant motion, made in apt time by them, for judgment as in case of nonsuit. C. S., 567. They contend: (1) That there is not sufficient evidence to establish an entire and indivisible contract between plaintiff and defendants, Trustees of the Church of God, for furnishing the building material for which lien is claimed by plaintiff; and (2) that if there be sufficient evidence of such contract, the pieces of lumber furnished 19 August, 1937, do not “constitute material in the building” of the church, and, hence, plaintiff did not begin to furnish material under such contract until after 28 August, 1939, the date on which the deed of trust was registered.

Yiewing the evidence in the light most favorable to plaintiff, as we must do in considering motions of this character, we are of opinion that the evidence with respect to both contentions is abundantly sufficient to present a proper case for determination by the jury.

■ (1) In the making of a contract it is essential that the parties thereto assent to the same thing in the same sense, and their minds must meet as to all the terms. Elks v. Ins. Co., 159 N. C., 619, 75 S. E., 808; Croom v. Lumber Co., 182 N. C., 217, 108 S. E., 735; Dodds v. Trust Co., 205 N. C., 153, 170 S. E., 652.

To be binding the terms shall be definite and certain, or capable of being made so. Elks v. Ins. Co., supra. But the contract need not definitely and specifically contain in detail every fact to which the parties are agreeing. It is sufficient if the terms can be made certain by proof. “An agreement is sufficiently definite as to quantity if a reasonably exact meaning with respect thereto can be ascertained by a proper interpretation of the agreement as shown by admissible evidence.” 12 Amer. Jur., 560.

Tested by these principles there is evidence in the present case upon which the jury could reasonably find that the parties entered into a contract by the terms of which plaintiff was to furnish all the material, except brick and cement, required immediately in the construction of a building “just like the church at Cramerton” in accordance with the blueprint in hand and examined by the parties, to cost approximately $3,500, for the financing of which arrangements had been made. The fact that plaintiff was not called upon to deliver all of the material does not alter the situation.

(2) Likewise, evidence of the circumstances surrounding the ordering out of the material, 2 x 8’s, on 19 August, 1937, is such that the jury could fairly find it to be a part of the material covered by the agreement then made. There is no evidence to the contrary.

In the judgment below we find

No error.