{ "id": 8572244, "name": "LESTER R. HORTON v. HUMBLE OIL & REFINING COMPANY, JESSE A. KISER and G. S. ATKINS", "name_abbreviation": "Horton v. Humble Oil & Refining Co.", "decision_date": "1961-11-22", "docket_number": "", "first_page": "675", "last_page": "680", "citations": [ { "type": "official", "cite": "255 N.C. 675" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "137 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657342 ], "opinion_index": 0, "case_paths": [ "/nc/137/0652-01" ] }, { "cite": "84 S.E. 392", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659463 ], "opinion_index": 0, "case_paths": [ "/nc/168/0330-01" ] }, { "cite": "141 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11252811 ], "opinion_index": 0, "case_paths": [ "/nc/141/0277-01" ] }, { "cite": "86 Me. 248", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 490525 ], "opinion_index": 0, "case_paths": [ "/me/86/0248-01" ] }, { "cite": "21 N.Y. 308", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": 0 }, { "cite": "5 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "216 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605855 ], "opinion_index": 0, "case_paths": [ "/nc/216/0480-01" ] }, { "cite": "75 S.E. 808", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "159 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660762 ], "opinion_index": 0, "case_paths": [ "/nc/159/0619-01" ] }, { "cite": "58 S.E. 2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632030 ], "opinion_index": 0, "case_paths": [ "/nc/231/0722-01" ] } ], "analysis": { "cardinality": 725, "char_count": 15212, "ocr_confidence": 0.545, "pagerank": { "raw": 2.885431335934463e-07, "percentile": 0.8438978488707257 }, "sha256": "48fba918dc47db21569babadc369f3a86ba505116db02402e80a68f08fd8dfb5", "simhash": "1:b27e4a2321a44e5c", "word_count": 2619 }, "last_updated": "2023-07-14T18:41:58.690444+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DeNNy, and PARKER, JJ., took no part in the consideration or decision of this case." ], "parties": [ "LESTER R. HORTON v. HUMBLE OIL & REFINING COMPANY, JESSE A. KISER and G. S. ATKINS." ], "opinions": [ { "text": "WiNBORNE, C.J.\nThe pivotal question presented on this appeal is this: Is there sufficient evidence, when viewed in the light most favorable to plaintiff, to establish the existence of a contract between plaintiff and the defendant Oil Company? The answer is No.\nIn Williamson v. Miller, 231 N.C. 722, 58 S.E. 2d 743, this Court said: \u201c \u2018To be binding, the terms of a contract must be definite and certain or capable of being made so.\u2019 Elks v. Ins. Co., 159 N.C. 619, 75 S.E. 808; Sides v. Tidwell, 216 N.C. 480, 5 S.E. 2d 316.\u201d\nIn Elks v. Ins. Co., supra, this Court said: \u201cIt is elementary that it is necessary that the minds of the parties meet upon a definite proposition. \u2018There is no contract unless the parties thereto assent, and they must assent to the same thing, in the same sense. A contract requires the assent of the parties to an agreement, and this agreement must be obligatory, and, as we have seen, the obligation must, in general, be mutual.\u2019 1 Par. Con., 475.\u201d\nIn the instant case, there is not sufficient evidence that the parties ever achieved a meeting of the minds upon the definite and certain terms of a contract. Plaintiff testified that the defendant Oil Company agreed to \u201cfully equip\u201d the filling station by the time that the plaintiff had returned from school, but there is neither sufficient evidence of what is generally meant by this term, nor evidence of what either party actually understood it to mean.\nAs to the financing of this equipment, plaintiff testified at one point that, \u201cPayment for the small equipment was to be set up for 36 months, and heavy equipment could be set up on 48 months, and there would be a small down payment I would be billed for. That was the method of paying for the equipment to be furnished me by Standard Oil.\u201d At another point, however, plaintiff testified that an agent of defendant Oil Company took him to the Commercial Bank in Kinston to assist him in getting a loan which \u201cwas to be used to purchase additional equipment and stock, I reckon.\u201d\nThis and similar uncertainty revealed in the testimony relative to the other terms of the alleged contract indicate that the parties did not reach that meeting of the minds necessary to the formation of a binding contract.\nHowever, there is evidence that the parties contemplated entering into a written contract. Plaintiff testified that a written lease for the filling station was given to him; that he kept it and read part of it; but that he did not sign it because \u201cI was afraid to bind myself by signing a lease then.\u201d\nIn Elks v. Ins. Co., supra, it is said: \u201cIf the minds of the parties meet upon a proposition which is sufficiently definite to be enforced, the contract is complete, although it is in the contemplation of the parties that it shall be reduced to writing as a memorial or evidence of the contract; but if it appears that the parties are merely negotiating to see if they can agree upon terms, and that the writing is to be the contract, then there is no contract until the writing is executed. Winn v. Bull, 7 Ch. D., 31; Pratt v. RR, 21 N.Y. 308; Steam Co. v. Swift, 41 Am. St. 553 (86 Me. 248); Rankin v. Mitchem, 141 N.C. 277.\u201d\nPlaintiff lays stress upon the fact that he relied on the statements made by agents of defendant Oil Company as to the income that he would receive from the business. However, it appears that, under these circumstances, such statements amount to no more than what this Court has referred to as \u201csales talk\u201d or \u201chuffing\u201d. As was said in Pritchard v. Dailey, 168 N.C. 330, 84 S.E. 392, \u201cThe representations of the defendant seem to be what are called \u2018promissory representations', looking to the future as to what can be done to the property, how profitable it was, and how much could be made by the investment. Representations which merely amount to a statement of opinion go for nothing. One who relies on such affirmations made by a person whose interest might prompt\" him to invest the property with exaggerated value does so at his peril and must take the consequences of his own imprudence. Cash Register Co. v. Townsend, 137 N.C. 652; Kerr on Fraud and Mistakes, p. 83.\u201d\nThus it appears that the court below was correct in allowing defendant\u2019s motion for judgment as of nonsuit. As this ruling is determinative of the case, it is unnecessary to discuss plaintiff\u2019s assignment of error relative to the measure of damage.\nHence, the judgment of the court below is\nAffirmed.\nDeNNy, and PARKER, JJ., took no part in the consideration or decision of this case.", "type": "majority", "author": "WiNBORNE, C.J." } ], "attorneys": [ "Jones, Reed & Griffin for plaintiff appellant.", "Whitaker & Jeffress, Lassiter, Moore & Van Allen, John T. Allred for defendant appellee." ], "corrections": "", "head_matter": "LESTER R. HORTON v. HUMBLE OIL & REFINING COMPANY, JESSE A. KISER and G. S. ATKINS.\n(Filed 22 November, 1961.)\n1. Contracts \u00a7 1\u2014\nIn order to constitute a valid contract there must be an agreement of the parties upon the essential terms of the contract, definite within themselves or capable of being made definite.\n2. Same; Contracts \u00a7 27\u2014 Evidence held to establish negotiations for agreement hut not execution of definite contract.\nEvidence to the effect that plaintiff terminated his employment and went to a training school in consideration of defendant\u2019s agreement to lease him a filling station, aid him in financing essential equipment, and that the station would be \u201cfully equipped\u201d by the time plaintiff returned from the training school, without any evidence as to what the parties meant by the term \u201cfuliy equipped\u201d and with further evidence tending to show uncertainty in regard to the agreement of financial assistance and credit, together with evidence that the parties contemplated signing a lease containing the specific terms of the agreement, and that the lease was delivered to plaintiff but never executed by him, is held insufficient to show a binding agreement between the parties but tends to establish only negotiations for a written agreement which was not executed.\n3. Same\u2014\nEvidence that defendant represented that plaintiff could earn at least a specified sum in the operation of a filling station to be leased to him by defendant is insufficient to establish a binding contract in regard thereto, since such promissory representation amounts to nothing more than a statement of opinion upon which plaintiff had no right to rely.\nDenny and Parker, JJ., took no part in the consideration or decision of this case.\nAppeal by plaintiff from Mintz, J., at April 1961 Term, of LeNOIR.\nCivil action to recover damages alleged to have been sustained by plaintiff as a result of breach of contract with the defendant Humble Oil & Refining Company relative to the lease of a gasoline service station at the corner of Highland Avenue and N. C. Highway No. 11, near the city limits of Kinston, North Carolina.\nPlaintiff alleged in the complaint, among other things, that defendant Oil Company agreed: (1) To lease to him the aforementioned service station, and to guarantee him an income of at least $100.00 per week for the first year of operation and at least $10,000.00 for the second year; (2) to fully equip and stock said station; (3) to arrange for plaintiff to attend a training school for service station operators in Charlotte, N. C.; (4) to finance plaintiff in equipping and stocking said station to the extent of $4,000.00, in addition to the $2,500.00 which plaintiff agreed to invest for said purposes; (5) to assist and supervise plaintiff in the operation of the station, for two-weeks; and (6) to acquaint, aid, and assist plaintiff in the operation of the business.\nPlaintiff further alleged that he agreed: (1) To terminate his employment with E. I. DuPont de Nemours & Company; (2) to invest his savings up to $2,500 in equipping and supplying the said station; (3) to borrow an additional $4,000 with the assistance of the corporate defendant for equipping and supplying the station; (4) to take the eight weeks training course for service station operators in Charlotte, North Carolina; (5) to lease the station; and (6) to operate the station.\nPlaintiff further alleged that he complied with the terms of the contract to the extent he was permitted so to do by said defendants, but that defendants failed to comply with the terms of the contract. Thus, plaintiff alleged damage in specified amounts as a result of the alleged breach of contract.\nDefendants in their answer denied the material allegations of the complaint. Defendants Kiser and Atkins demurred ore terms to the complaint, and judgment sustaining the demurrer was entered dismissing the action as to them, to which plaintiff did not assign error.\nAt the trial, the sole testimony offered was that of plaintiff. He testified, relative to the creation of the alleged contract between himself and defendant Oil Company, that in July, 1957, he had been working for the DuPont Company at Kinston for six and one-half years, his salary at that time being $100.40 per week. Mr. Cooper of Harvey Oil Company contacted him at that time and asked him if he could come and meet a representative of defendant Oil Company. Plaintiff then went to the Harvey Oil Company offices, where he was introduced to defendant Kiser who, as plaintiff was told, was a representative of Esso and had jurisdiction of the new station on Highland Avenue. Mr. Kiser told plaintiff that he \u201clooked like a young, healthy man that they could place there and train, and that this would be a superior investment and would pay off materially.\u201d\nPlaintiff further testified that defendant Kiser mentioned a number of factors that indicated that the station would be a success and would \u201cpump\u201d 20,000 gallons of gasoline per month. After plaintiff told defendant Kiser about his employment situation with DuPont, and the amount of money that he needed to meet his monthly obligations, defendant Kiser said: \u201cThe school we are sending you to in Charlotte would make a first-class operator out of you. I can guarantee you will make the payments you are making, and with the build-up of that station, you could make $10,000 a year, and that would certainly be bettering yourself.\u201d\nAs to the financial arrangements necessary to open the filling station, plaintiff testified that he informed Mr. Kiser that he could raise nearly $2,500. Mr. Kiser replied that plaintiff would need at least another $4,000. When plaintiff stated that he could not raise that amount, Mr. Kiser said: \u201cI will take care of that. I will call Mr. Harvey ; he owns his own bank and operates Harvey Oil Company; I will make arrangements for that.\u201d\nPlaintiff further testified that Mr. Kiser informed him as to what he would have to do to enter the training school. He then took plaintiff to the Commercial Bank where plaintiff applied for credit, and later introduced plaintiff to Mr. Smith, the regional manager of defendant Oil Company. After a period of general discussion, Mr. Smith told plaintiff: \u201cI assure you that you will not lose anything with Esso behind you, worth millions of dollars, and Harvey worth millions of dollars. You can\u2019t lose anything.\u201d\nMr. Kiser then told plaintiff that he would give plaintiff the necessary assistance for selection of proper equipment, and for setting up and opening the station. In plaintiff\u2019s words: \u201cMr. Kiser told me that all of that (equipment) would be selected by my assistants while I was in school, with everything complete when I got out of school, and when I came back from school, the station would be ready to open the doors and take in full service in business. With reference to assisting me after the station was opened, he said that I would get complete assistance from him; that he was (salesman of) * * * tires, batteries and accessories. That was why he was handling the territory in that capacity. He said if he was here when I got back from school * * * I was to get two weeks assistance in opening the station, getting everything set up, and taking in new business if I needed it.\u201d\nAs to the necessity of earning an amount sufficient to pay his living expenses and also to pay his monthly bills, plaintiff testified: \u201cHe (Mr. Kiser) said he could guarantee me the amount to meet them certainly; that I would be cheating myself, being a business man of my ability, not to take the proposition. He assured me of the one hundred dollars a week, and he assured me that at the end of the year, I would make ten thousand dollars the second year. I saw there was an opportunity to better myself, and I told him that I would take it.\u201d\nPlaintiff further testified that he went to the training school as arranged, but that when he returned he found \u201cthat the arrangements for the equipment had not been exercised,\u201d and that \u201ccredit had not been set up for me at Esso Headquarters. * * * The station was not equipped when I returned from school, not a desk or anything.\u201d\nNevertheless, plaintiff opened the station and hired two men to assist him in operating it. After a short period, however, plaintiff \u201c* * * saw that if something wasn\u2019t done to make the station a paying proposition that I had been promised, I would never be able to make it.\u201d At the suggestion of defendant Atkins, plaintiff reduced the price of gasoline and displayed signs to that effect, but the business failed to prosper. Thus, plaintiff testified, shortly thereafter he settled all accounts with the distributor, Harvey Oil Company, and closed the station.\nOn cross-examination, plaintiff testified that it- was contemplated that a written lease for the filling station would be drawn and signed by him, and that such a lease was handed to him by defendant Atkins around the first of October. In plaintiff's words, \"I kept it (the lease), read through part of it, and never did sign it. I kept it until I closed the station. In a week or two, or a month, Mr. Atkins called me and asked if I could bring it to Harvey Oil Company. He said he had another application. I took it to him. I tried to cooperate. I stayed there five weeks without paying any rent, without signing any lease, and operated the filling station. The lease was about 12 or 15 pages, and I read through most of it and saw what the contents of it were. Up until that time, Esso' hadn\u2019t followed through on their obligations and I was afraid to bind myself by signing a lease then. I didn\u2019t know what would take place.\u201d\nOn both direct and cross-examination, plaintiff testified that at the time he was about to close the station, he was told by defendant Atkins that defendant Oil Company had stations which it operated as a \u201cproject\u201d wherein the station operator was an employee on a salary-commission basis. Plaintiff testified that he asked defendant Atkins why this station was not operated that way, and defendant Atkins replied that the station in question was built by the Harvey firms and leased to Esso Standard, and that Esso Standard then gave Harvey Oil Company the right to supply the station so that Esso couldn\u2019t supply it as they would supply their own station.\nAt the close of plaintiff\u2019s evidence, defendant Oil Company made motion for judgment as of nonsuit. The motion was allowed by the court below, to which plaintiff objects, excepts and appeals to Supreme Court, and assigns error.\nJones, Reed & Griffin for plaintiff appellant.\nWhitaker & Jeffress, Lassiter, Moore & Van Allen, John T. Allred for defendant appellee." }, "file_name": "0675-01", "first_page_order": 713, "last_page_order": 718 }