{ "id": 8547760, "name": "DR. TERRY O. BOWMAN v. WILLIAM A. HILL; JAY W. TERRELL and wife, SHIRLEY H. TERRELL", "name_abbreviation": "Bowman v. Hill", "decision_date": "1980-02-05", "docket_number": "No. 7922SC357", "first_page": "116", "last_page": "118", "citations": [ { "type": "official", "cite": "45 N.C. App. 116" } ], "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": "73 ALR 918", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "174 NE 436", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "255 NY 156", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1994799 ], "opinion_index": 0, "case_paths": [ "/ny/255/0156-01" ] }, { "cite": "37 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "226 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618494 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/nc/226/0303-01" ] } ], "analysis": { "cardinality": 391, "char_count": 5797, "ocr_confidence": 0.817, "pagerank": { "raw": 1.5446626697516371e-07, "percentile": 0.6735630146776898 }, "sha256": "bb3a33ce3851d98b43a8c0a5df3c8ef2c301bb33ea7bd588c6a4bed189141b65", "simhash": "1:78cf7c1c458d74f6", "word_count": 990 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge PARKER concur." ], "parties": [ "DR. TERRY O. BOWMAN v. WILLIAM A. HILL; JAY W. TERRELL and wife, SHIRLEY H. TERRELL" ], "opinions": [ { "text": "HILL, Judge.\nDefendant assigns as error the lower court\u2019s judgment that defendants were obligated to plaintiff under the terms of the written agreement. We find that the court was in error.\nWhere the language of a contract is plain and unambiguous the construction of the agreement is a matter of law for the court, and a patent defect [emphasis added] or omission cannot be cured by matters outside the instrument.\n. . . [T]he court may not, under the guise of construction, ignore or delete any of its provisions, nor insert words into it, but must construe the instrument as written .... 3 Strong\u2019s N.C. Index 3d, Contracts \u00a7 12.1, pp. 391-2.\nOne of the elements of a valid contract is a promise, which has been defined as an assurance that a thing will or will not be done. \u201cThe mere expression of an intention or desire is not a promise, however . . . .\u201d 17 Am. Jur. 2d, Contracts \u00a7 2, p. 334.\nAn apparent promise which, according to its terms, makes performance optional with the promisor no matter what may happen, or no matter what course of conduct in other respects he may pursue, is in fact no promise. Such an expression is often called an illusory promise. Williston, Contracts \u00a7 1A (3d ed. 1957).\nWhen we give the ordinary and usual meaning to the words of the contract \u2014 desire and desirous \u2014 it is apparent that they express a wish or request. Certainly, they do not carry the thrust of a promise to do or refrain from doing anything with regard to the remaining property. There is no expressed obligation to develop the property at anytime.\nIn the case of Jones v. Realty Co., 226 N.C. 303, 37 S.E. 2d 906 (1946), the plaintiff sued to recover a sales commission for procuring a purchaser who was ready, willing, and able to buy land on terms set out in an agreement. The trial court interpreted the agreement between the parties to mean that the commission was to be paid \u201cwhen\u201d \u2014and only when \u2014\u201cthe deal is closed up.\u201d The deal never closed, and the Court said at p. 306 that,\nIt can make no difference whether the event be called a contingency or the time of performance. Certainly, under either construction, the result would be the same; since, if the event does not befall, or a time coincident with the happening of the event does not arrive, in neither case may performance be exacted. Nor will it do to say that a promise to pay \u2018when the deal is closed up\u2019 is a promise to pay when it ought to be closed up according to the terms of the contract. Such is not the meaning of the words used. It is the event itself, and not the date of its expected or contemplated happening, that makes the promise to pay performable. Amies v Wesnofske, 255 NY 156, 174 NE 436, 73 ALR 918.\nBy the conveyance of the property on 4 February 1977, the defendants served notice to the plaintiff, and to all the world, that they would never develop the property, and such conveyance and notice terminated the agreement, if any there was.\nFor the reasons stated above, the decision of the court below is\nReversed.\nChief Judge MORRIS and Judge PARKER concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Brinkley, Walser, McGirt, Miller & Smith, by Gaither S. Walser, for plaintiff appellee.", "Grubb, Penry & Penry, by Robert L. Grubb, for defendant appellant." ], "corrections": "", "head_matter": "DR. TERRY O. BOWMAN v. WILLIAM A. HILL; JAY W. TERRELL and wife, SHIRLEY H. TERRELL\nNo. 7922SC357\n(Filed 5 February 1980)\nContracts \u00a7 27.1\u2014 agreement to construct parking lot \u2014 no binding obligation created\nWhere defendants sold to plaintiff an office building which adjoined a vacant lot belonging to them, an agreement for the development of the adjoining land which was entered into on the same day as the conveyance of the office building and which provided for the construction of a joint parking lot merely expressed a wish or request and in no way created an obligation for defendants to develop their property in any way at any time.\nAPPEAL by defendants from Hairston, Judge. Judgment entered 5 January 1979 in Superior Court, Davidson County. Heard in the Court of Appeals 28 November 1979.\nOn 1 August 1974, defendants sold and conveyed to plaintiff a parcel of land on Anderson Street in the Town of Denton. A building which plaintiff had previously constructed for use as his professional office was located on the land. The front of the office building faced north \u2014 toward vacant land owned by defendants. One side of the building ran along Anderson Street.\nOn the date of conveyance the parties entered into a purported agreement for the development of the adjoining land providing inter alia as follows:\n. . . whereas the parties of the second part [defendants] desire to construct a building adjacent to the building of the party of the first part [plaintiff] at some future time; and WHEREAS, all of the parties are desirous of having one large inter-connecting parking lot located in front of the buildings and sidewalks connecting to said parking lots;\nWITNESSETH:\nThat for the mutual considerations expressed hereinabove, the parties do contract as follows:\n1. Upon completion of the paving of the parking lot of the parties of the second part [defendants] and at their request, the party of the first part [plaintiff] hereby agrees to construct a parking area of the same material ....\nDefendants\u2019 land remained vacant and undeveloped from the time the agreement was made on 1 August 1974 until 4 February 1977. On that date, defendants conveyed their land to Harp and Dockham who constructed an office building facing Anderson Street and lying approximately fifty-seven feet north of plaintiff\u2019s office. The building was located where plaintiff had contemplated the parties\u2019 parking lot would be placed.\nPlaintiff sued for breach of contract and fraud. Judgment was entered 5 January 1979 granting plaintiff damages. From that judgment, defendants appealed.\nBrinkley, Walser, McGirt, Miller & Smith, by Gaither S. Walser, for plaintiff appellee.\nGrubb, Penry & Penry, by Robert L. Grubb, for defendant appellant." }, "file_name": "0116-01", "first_page_order": 144, "last_page_order": 146 }