{
  "id": 8554508,
  "name": "NORTH CAROLINA NATIONAL BANK, Plaintiff v. G. C. WALLENS and wife, J. W. WALLENS and DONALD SCHAAF and wife, DORIS SCHAAF, Defendants; - and - DONALD SCHAAF, Third-Party Plaintiff v. SAMUEL LONGIOTTI, Third-Party Defendant",
  "name_abbreviation": "North Carolina National Bank v. Wallens",
  "decision_date": "1975-07-16",
  "docket_number": "Nos. 7515SC177 and 7515SC178",
  "first_page": "580",
  "last_page": "584",
  "citations": [
    {
      "type": "official",
      "cite": "26 N.C. App. 580"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "208 S.E. 2d 692",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "285 N.C. 780",
      "category": "reporters:state",
      "reporter": "N.C.",
      "year": 1974,
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 516,
    "char_count": 9109,
    "ocr_confidence": 0.557,
    "pagerank": {
      "raw": 4.0018939127823624e-07,
      "percentile": 0.9058309963244962
    },
    "sha256": "404985b1d0798081d8288db1cdcc01b3bc956a88403a9638434a7da1a1a8dcf5",
    "simhash": "1:3f06c5d57d50f2f6",
    "word_count": 1469
  },
  "last_updated": "2023-07-14T16:59:13.418266+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Clark and Arnold concur."
    ],
    "parties": [
      "NORTH CAROLINA NATIONAL BANK, Plaintiff v. G. C. WALLENS and wife, J. W. WALLENS and DONALD SCHAAF and wife, DORIS SCHAAF, Defendants - and - DONALD SCHAAF, Third-Party Plaintiff v. SAMUEL LONGIOTTI, Third-Party Defendant"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nThe original defendant, Donald Schaaf, as third-party plaintiff, alleges that the third-party defendant, Samuel Longiotti, is liable to him for all of the plaintiff\u2019s claim against him. His claim is based on a writing which appears in the record as follows:\n\u201cPa Plaza Associates Inc.\nPost Office Box 2208 Chapel Hill, North Carolina 27514\nMay 27, 1971\nCertified Mail\nMr. Don Schaaf\n51 Compass Lane\nFort Lauderdale, Florida 38308\nDear Don:\nThis letter is to serve as a memorandum agreement until proper complete documents can be drawn up to consummate this transaction.\nMr. Longiotti hereby agrees to guarantee Mr. Schaaf against any claims due on the four (4) bank notes involving the Koretizing ventures which Mr. Schaaf and Mr. Wallens own jointly, i.e., Chapel Hill, Elizabeth City, Henderson, and Roanoke Rapids. In return for this Mr. Schaaf surrenders his interest and any claims in these Koretizing ventures to Mr. Longiotti and Mr. Wallens and as additional consideration to them he agrees the rental through May 1971 for Henderson and Elizabeth City are properly chargeable against funds due him from Mr. Longiotti. Also, Mr. Schaaf agrees that the rental due from Gerry Wallens and Sam Longiotti for the Chapel Hill location is to be reduced to one-half (}/%) the normal rent for the months of June, July, August, and September 1971, thereafter, to resume at full rental.\nAccepted By:\ns/ Samuel Longiotti\nSworn to and subscribed before\nme this 27th day of May, 1971.\ns/ Alma G. Andrews\nNotary Public\nMy Commission Expires: June 2, 1975\nAccepted By:\ns/ Don Schaaf\nSworn to and subscribed before\nme this 17th day of June, 1971.\ns/ Allen J. Richter\nNotary Public\nMy Commission Expires:\u201d\nApparently, no subsequent documents were executed.\nThe issue presented for decision is whether the third-party complaint affirmatively pleads facts which necessarily negate and defeat the third-party plaintiff\u2019s right to relief. Resolution of this issue, in turn, depends upon whether the alleged agreement of 27 May 1971 is unenforceable as a matter of law.\nAccording to the third-party defendant, Samuel Longiotti, the crucial language is contained in the first paragraph which states, \u201cThis letter is to serve as a memorandum agreement until proper complete documents can be drawn up to consummate this transaction.\u201d Relying on Boyce v. McMahan, 285 N.C. 780, 208 S.E. 2d 692 (1974), it is argued that this language makes clear the preliminary nature of the alleged agreement and, further, that it destroys the efficacy of the writing as a contract as a matter of law.\nIn Boyce v. McMahan, supra, the paper writing in question contained the following language: \u201cWhereas the Owner and Developer . . . desire to enter into a preliminary agreement setting, out the main features as to the desires of both parties and to execute a more detailed agreement at a later date; . . . That the parties hereto agree to supplement this preliminary agreement by executing a more detailed agreement at some specific and subsequent date to be agreed to. by the parties hereto.\u201d No further contract or agreement had been- executed in that cas\u00e9. This Court held that the. writing was unenforceable as a contract, and our Supreme Court affirmed that', result, by stating that \u201c[t]he writing itself carries the terms which destroy its efficacy as a contract.\u201d\nThe Court\u2019s reasoning in Boyce is clear. Generally, a contract, or offer to contract; which leaves- material portions open for future agreement is nugatory and void for indefiniteness. The reason is that if a prelirinnary contract fails to specify all of its, material and essential terms so that some are left open for futiire\u2019n\u00e9gbti\u00e1ti oils, then there \"i's no way by which'a' court can determine the resulting terms of such future negotiations. Hence, there is no basis upon which to ascertain what damages, if any, might follow from a - refusal to enter into such future agreement. By its own terms, the writing in Boyce was income p\u00edete and subject to supplementation by a more detailed agreement. We find Boyce tq be distinguishable.\nClearly, if the parties in the present case had manifested an intent not to become bound until the execution of a more formal agreement or document, then such an intent would be given effect. However, they stated that the writing would serve as an agreement until \u201cproper complete documents\u201d could be drawn. From such language it cannot be said that execution of a later agreement was a condition precedent to any contractual rights which might otherwise pertain. Furthermore, reference to a more \u201ccomplete\u201d document does not necessarily indicate that material portions of the agreement have been left open for future negotiation. It could mean only that immaterial matters, which are of no consequence, will be added to complete the agreement. Also, the writing under consideration was sent to the third-party plaintiff by the third-party defendant, Samuel Longiotti, who now seeks to repudiate it.\nAs stated in Boyce, \u201cIn the usual case, the question whether an agreement is complete or partial is left to inference or further proof.\u201d \u201cThe subsequent conduct and interpretation of the parties themselves may be decisive of the question as to whether a contract has been made even though a document was contemplated and has never been executed.\u201d 1 Corbin, Contracts, \u00a7 30, pp. 107-8 (1963).\nIn the present case there is nothing about the writing itself which destroys its efficacy as a contract as a matter of law. Therefore, we hold that it was error to dismiss the third-party' complaints for failure to state a claim upon which relief could be granted.\nReversed.\nJudges Clark and Arnold concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Manning, Fulton & Skinner, by Howard E. Manning, Thomas C. Worth, Jr., and Lawrence W. Hill, Jr., for third-party plaintiff appellant.",
      "Midgette, Page, Higgins & Niles, by Robert J. Page, Keith D. Lembo, and W. Laurens Walker, for third-party defendant appellee."
    ],
    "corrections": "",
    "head_matter": "NORTH CAROLINA NATIONAL BANK, Plaintiff v. G. C. WALLENS and wife, J. W. WALLENS and DONALD SCHAAF and wife, DORIS SCHAAF, Defendants - and - DONALD SCHAAF, Third-Party Plaintiff v. SAMUEL LONGIOTTI, Third-Party Defendant\nNos. 7515SC177 and 7515SC178\n(Filed 16 July 1975)\nContracts \u00a7 3\u2014 memorandum until complete documents drawn up \u2014 enforceable contract\nA paper writing containing the statement, \u201cThis letter is to serve as a memorandum agreement until proper complete documents can be drawn up to consummate this transaction,\u201d is not unenforceable as a contract as a matter of law since it cannot be said that the execution of a later agreement was a condition precedent to any contractual rights which might otherwise pertain, and the reference to more \u201ccomplete\u201d documents does not necessarily indicate that material portions of the agreement have been left open to future negotiation.\nAppeal by third-party plaintiff Donald Schaaf from Bras-well, Judge. Judgments entered 9 January 1975 in Superior Court, Orange County. Heard in the Court of Appeals 7 May 1975.\nFor purposes of appeal, Cases Nos. 74CvS302 and 74CvS570 have been consolidated.\nIn its complaint filed 28 February 1974, plaintiff bank sought to collect on a note, alleging in part that on or about 18 March 1970, defendants executed and delivered to plaintiff a note in the amount of $141,996.96; that defendants had defaulted in their payments; that plaintiff\u2019s demand for payment was refused; and that a balance of $88,377.00 was due.\nIn a second complaint filed 24 April 1974, plaintiff bank \u2022sought to collect on a second note, alleging in part that on or about 2 March 1973 defendant G,. C., Wallens, on behalf of Koretizing'Mart of Chapel Hill, executed and delivered to plaintiff a note in the amount of $76,370.25; that the Koretizing' Mart had defaulted in payments; and that a balance of $52,102.76 was due. Pleading in the alternative, plaintiff sought recovery from defendants by first alleging that they had guaranteed all debts of the Koretizing Mart of Chapel Hill pursuant to a writing dated 23 July 1970. Secondly, plaintiff alleged that this note was only a renewal of an earlier note signed by defendants G. C. Wallens and Donald Schaaf.\nIn both actions, defendant Donald Schaaf filed a third-party complaint against Samuel Longiotti seeking indemnification if Schaaf should be found liable in the primary actions. In the third-party complaints it was alleged that on or about 27 May 1971, the third-party defendant; Longiotti, and the third-party plaintiff, Schaaf, entered into an agreement whereby Longiotti agreed to indemnify Schaaf for liability and loss on the claims now being asserted against Schaaf. The alleged agreement was attached to the pleadings in each case.\nPursuant to G.S. 1A-1, Rule 12(b) (6), Longiotti moved to dismiss each of the third-party complaints for the reason that they failed to state a claim upon which relief could be granted. Having expressly determined that there was no j\u00fast reason for delay, the trial court entered judgments dismissing the third-party complaints. From these judgments, third-party plaintiff, Schaaf, appealed.\nManning, Fulton & Skinner, by Howard E. Manning, Thomas C. Worth, Jr., and Lawrence W. Hill, Jr., for third-party plaintiff appellant.\nMidgette, Page, Higgins & Niles, by Robert J. Page, Keith D. Lembo, and W. Laurens Walker, for third-party defendant appellee."
  },
  "file_name": "0580-01",
  "first_page_order": 608,
  "last_page_order": 612
}
