WILLIAMSON et al.
v.
MILLER et al.
No. 450.
Supreme Court of North Carolina.
April 19, 1950.*746 Ellis Nassif, Raleigh, for defendant, appellant.
Broughton, Teague & Johnson, Raleigh, for plaintiff, appellee.
SEAWELL, Justice.
The gravamen of plaintiff's action, as stated in the complaint, is found to be as follows: (1) That the defendants violated their agreement to purchase oil and other mentioned products from the plaintiff, thereby causing the latter loss in profits, and because of their investment in the construction of a bulk plant and the purchase of trucks to supply defendants with products; and (2) that the defendants have broken their agreement to display on the premises plaintiff's trade marks and advertising matter, causing further damage and loss. Total damages are claimed in the sum of $25,000, which includes profits on prospective sales from June 1949 until November 24, 1950. The two instruments entitled "Authorized Distributors Agreement" and "Bulk Sales Agreement" simultaneously executed and referring to the same subject, are considered together and will be referred to as "the contract." They are by reference made a part of the complaint.
The plaintiffs, of course, cannot recover unless the purported contract was valid, binding, and enforceable in respect to those duties, the nonperformance of which is alleged as a breach constituting the exclusive cause of action.
Since the contract is made a part of the complaint, and is alleged as the sole basis of recovery, the Court will look to its particular provisions rather than the more broadly stated allegations in the complaint, or the conclusions of the pleader as to its character and meaning. Upon proper construction of these writings depends the propriety of the judgment overruling the demurrer.
1. It does not appear on the face of the contract that defendant agreed to purchase any specified quantity of oil or other mentioned products at all, at any time, or during any specified period within the "life of the contract."
The contract upon which the plaintiffs rely states with reference to this question: "Products and Quantity, Wake Oil agrees to sell and Buyer agrees to buy petroleum products of the kind and in the quantities listed below:"
and immediately below the above quotation it sets out the products and the quantity as follows:
"Products
"Republic Ethyl Premium Gasoline ___ Gallons
"Republic Royale Housebrand Gasoline _____ Gallons."
We find no reference to the quantity of products to be sold and bought in any other part of the contract. Both instruments constituting the contract have exactly the same omission with respect to the obligation of the defendants in this regard, and neither party to the "agreement" is any more bound than the other.
The appellees argue that the contract must be construed "from the four corners" but fail to point out any provision elsewhere in the contract that could reasonably supply the omission. "Looked at" from the four corners it is still a blank.
The plaintiffs sought to close the gap by setting up in their pleading that during a certain period they sold, and defendants bought, substantial quantities of the products mentioned in the contract, naming the amounts. The theory on which these allegations are laid is reflected here in the argument of the appellees that the course of dealing between the parties constitutes a practical construction placed by them on the contract and generates an inference *747 which would save the contract from defeat and also supply a standard for measure of damages.
It is true that in a situation of doubtful interpretation of some expression found in an executory contract the modus vivendi or course of dealing between the parties, may have a bearing on its construction; but we have never known the principle applied to a wholesale amendment to the contract where there is no expression of the reciprocal duties to be construed. "The rule as to consideration of the construction placed on a contract by the parties is, of course, inapplicable where there is no binding contract." 17 C.J.S., Contracts, § 325, p. 762. "Where a term of a contract is lacking, resort may not be had to the acts or conduct of the parties not in terms amounting to an agreement for the purpose of supplying it." 12 Am.Jur., "Contracts," sec. 249, p. 791.
We are reminded that it is the province of the Court to construe and not to make contracts for the parties. Belk's Dept. Store of New Bern v. George Washington Fire Ins. Co., 208 N.C. 267, 180 S.E. 63.
The contract makes the buyer an authorized distributor of plaintiff's products but it nowhere binds him to purchase exclusively from the plaintiff or to deal exclusively in their products. Such a contract might have implications which the parties sought to avoid. But we need not speculate on this. The matter omitted from the contract is so important, forming as it does the very basis of plaintiff's claim, that it must be left to treaty between the parties, by which alone, and not by judicial amendment, could there be brought about that meeting of the minds which is essential to any contract. Elks v. North Star Ins. Co., 159 N.C. 619, 75 S.E. 808; Croom v. Goldsboro Lumber Co., 182 N.C. 217, 108 S.E. 735; Sides v. Tidwell, 216 N.C. 480, 5 S.E.2d 316.
Here there is no latent ambiguity to be explained by matter dehors the record but there is a patent defect which cannot be cured by extraneous reference or matters not within the document. Its construction becomes a matter of law for the Court.
The challenge to the vagueness in the contract goes to its sufficiency as giving rise to a cause of action. Breach of an invalid contract, if that paradox could exist, gives rise to no cause of action. Elks v. North Star Ins. Co., supra, loc. cit. p. 626, 75 S.E. 811. "If no breach in the contract could be assigned, which could be measured by any test of the damages from the contract, it has been said to be too indefinite to be enforceable," citing Page on Contracts, sec. 28. "To be binding, the terms of a contract must be definite and certain or capable of being made so." Elks v. North Star Ins. Co., supra; Sides v. Tidwell, supra.
"If the uncertainty as to the meaning of a contract is so great as to prevent the giving of any legal remedy, direct or indirect, there is no `contract'." Carver v. Brien, 315 Ill.App. 643, 43 N.E.2d 597; Van Slyke v. Broadway Ins. Co., 115 Cal. 644, 47 P. 689, 928.
For the reasons given we are of the opinion that the terms of the alleged contract in this vital particular are too vague and uncertain to give rise to any cause of action which could survive the demurrer.
2. Referring now to the contention that the defendant breached the terms of the contract with reference to the display of plaintiff's signs and advertising matter, an inspection of the contract does not bear out plaintiff's contentions that it was obligatory on the part of the defendant to do so. The language used in the contract with reference to these items gives the defendants the right to use the plaintiff's "globes" and to display advertising matter of the plaintiff but does not require them to do so.
For the reasons assigned, the judgment of the court below overruling defendant's demurrer must be reversed. It is so ordered.
Reversed.