Richard E. EMERSON and Jacqueline A. Emerson
v.
George G. CARRAS and Carras Realty Company.
No. 7626SC745.
Court of Appeals of North Carolina.
May 4, 1977.*645 Farris, Mallard & Underwood, P. A., by Ray S. Farris, Charlotte, for plaintiffs-appellees.
Sanders & London by Richard A. Lucey, Charlotte, for defendants-appellants.
MORRIS, Judge.
The sales contract specified that plaintiffs were purchasing "2927 Sharon Road Charlotte, North Carolina, including house, lot and all improvements thereon". The court allowed parol evidence to show that plaintiffs understood and were told that the lot had dimensions of 213 feet × 201 feet and contained approximately one acre. This defendants assign as error, the exceptions taken to the overruling of their objections being grouped under assignment of error No. 1. We note at the outset that objections appear at only four places in the record and that interspersed at various places between these objections is testimony of the same import without objection raised. Testimony to the effect that plaintiffs thought they were buying a lot with 213 feet frontage and only got 106 feet *646 frontage was elicited from plaintiff by defendants on cross-examination. Be that as it may and regardless of whether defendants have waived their objection to this testimony, we are of the opinion that it was admissible. Defendants urge that there was no ambiguity, latent or patent, with respect to what was the subject of the contract and that, because parol evidence cannot be allowed to vary, add to, or contradict a written instrument, the evidence was not admissible. We do not disagree with this legal principle, but we do not agree that its application to this case is as crystal clear as defendants would have us believe. We agree that the contract does not contain a patent ambiguity. However, we are of the opinion that it does contain a latent ambiguity.
"The term `latent ambiguity' is defined to mean an ambiguity which arises not upon the words of the instrument, as looked at in themselves, but upon those words when applied to the object or subject which they describe." 3A C.J.S. Ambiguity p. 410. In Miller v. Green, 183 N.C. 652, 654, 112 S.E. 417, 417-18, (1922), our Supreme Court said:
". . . [I]f there is a latent ambiguity. . . preliminary negotiations and surrounding circumstances may be considered for the purpose of determining what the parties intendedi. e., for the purpose of ascertaining in what sense they used the ambiguous language, but not for the purpose of contradicting the written contract or varying its terms. A latent ambiguity may arise where the words of a written agreement are plain, but by reason of extraneous facts the definite and certain application of those words is found impracticable. (Citations omitted.)"
See also, Restatement of Contracts, § 242 (1932); Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d 73 (1941).
Here the evidence to which defendant objects shows that the handwritten listing sheet, which he says he prepared, shows the property designated thereon as 2927 Sharon Road as being a one-acre lot having dimensions of 213 feet × 201.67 feet × 125 feet × 226 feet. Prior to the execution of the agreement and during negotiations for the sale and purchase of the property, plaintiffs were shown a copy of the typed listing, prepared from the handwritten listing, which gave the same dimensions. The evidence also disclosed that McIntosh, agent for defendant Carras, referred to the listing sheet and indicated to plaintiffs that the lot had a frontage of 213 feet and contained approximately one acre. Plaintiff further testified that prior to 30 April 1975, no one told him that the lot dimensions were less than those shown on the typed listing sheet and as indicated by Mr. McIntosh. The complaint alleged, on the other hand, that the lot known as 2927 Sharon Road had a front footage of 106.5 feet and contained approximately one-half acre. Testimony at trial revealed this to be true.
It, therefore, appears that a latent ambiguity did exist. The evidence to which defendant objects was admissible, under the circumstances of this case, and this assignment of error is overruled.
Defendants next contend, by assignments of error two and three, that the court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict or a new trial. They base these contentions on two grounds: first, that the complaint does not state a cause of action for breach of contract and the motion for directed verdict as to the cause of action in tort was granted; and, in the alternative, that the plaintiffs' evidence disclosed a mutual mistake, and the issue of whether there was a contract should not have been submitted to the jury.
With respect to the first contention, while it is true that plaintiffs alleged that defendants misrepresented the size of the lot, we are of the opinion that the complaint sufficiently alleged the existence of a contract, the inability of defendant Carras to perform that contract, and that plaintiffs were damaged by reason of the failure and inability to perform. We note, also, that defendants by their answer asserted the defenses of accord and satisfaction and rescission. *647 These are proper defenses in a contract action. Defendants must have recognized a cause of action for breach of contract when they filed their answer. Certainly, they can claim no element of surprise, nor that they were denied a fair opportunity to defend their case. Accordingly, it was not error for the trial judge to permit the case to go to the jury on a theory different from that alleged in the complaint. Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972).
With respect to the mutual mistake contention, the evidence for plaintiffs tends to show that plaintiffs were of the opinion that the lot contained the acreage shown on the listing sheet and they had the dimensions shown thereon. The uncontradicted evidence was that this listing sheet was prepared by defendant Carras, and that his agent was of the opinion that the listing sheet correctly described the property. Although defendant Carras testified that when he entered into the agreement he did not have any intention of selling a lot having those dimensions, whether he was aware of the true size of the lot at the time was for the jury. We think there was sufficient evidence of a mutual meeting of the minds to submit the issue to the jury. These assignments are, therefore, overruled.
Defendants' fourth assignment of error is directed to the court's charging the jury in a manner which allowed the jury erroneously to believe that plaintiffs had instituted an action for breach of contract. The view we have taken with respect to assignments of error two and three requires that assignment of error four be overruled.
Defendants filed a written request for instructions on mutual mistake. The request was denied and defendants excepted. This exception is the basis for defendant's assignment of error five. The court, in instructing the jury, defined a contract as ". . . a mutual agreement between two or more competent parties based upon a sufficient consideration to do or not to do a particular thing." He further charged that there could not be a contract ". . unless the parties assent to the same thing in the same sense at the same time", and that there must be "mutuality of agreement". He then instructed the jury that ". . . this is where the dispute arises. The plaintiffs saying and contending that there was a mutual agreement, and the defendant denying that there was a mutuality of agreement." The jury was precisely instructed that if they should find that at the time the agreement was signed the defendant intended to describe the lot as one having 106 feet frontage, they must answer the first issue "no". It is clear that the jury could not have misunderstood the instructions. They embodied the requested instructions, even though not in that language. Nor is the court required to use the precise language of the tendered instruction ". . . so long as the substance of the request is included in language which does not weaken its force". King v. Higgins, 272 N.C. 267, 270, 158 S.E.2d 67, 69 (1967).
The court further instructed, with respect to the rights of the parties, in the event the jury should find a contract existed, that should the purchaser find that the seller could not convey the amount of property described in the contract, he could elect to affirm the contract and retain whatever property he received thereunder; that affirmance would end the right to rescind, but would not prevent the affirming party from recovering from the seller the difference in value of the property sold as it was and as it would have been had the seller been able to convey the amount called for in the contract. Defendants do not except to this portion of the charge. It correctly states the law of this State. See Goldstein v. Trust Co., 241 N.C. 583, 86 S.E.2d 84 (1955), and cases there cited.
Defendants contend by their sixth assignment of error that prejudicial error was committed by the court when, during his instructions to the jury, he stated: ". . . [I]f the plaintiff has satisfied you . . . that on or about the 7th day of April, 1975, Mr. McIntosh, who at the time was acting in behalf of Mr. Carras, *648 executed a contract for the sale . . ." There is no question but that defendant Carras executed the contract. This was admitted in defendants' answer, and was not at issue at the trial. At the end of the charge, the court told the jury that it had been called to his attention that he had said the contract was signed by McIntosh, that the attorneys for the parties had called his attention to defendants' Exhibit 4 (the contract in question) as having been signed by Mr. Carras, and that he was sure the jury's recollection as to that was proper. While the court was in error, we fail to perceive error sufficiently prejudicial to warrant a new trial. The error was called to his attention. He was referred to the exhibit and referred to that exhibit to the jury, directing them to use their own recollection. This assignment of error is overruled.
By their seventh assignment of error defendants urge that they were prejudiced by the court's allowing hearsay testimony as to the handwriting on plaintiff's Exhibit 4, the sales listing sheet. Plaintiff Emerson was allowed to testify that Mr. McIntosh told him the listing sheet was in defendant Carras's handwriting. Defendant Carras, during his testimony, identified the listing sheet and stated that it was in his handwriting. While the testimony was clearly hearsay, defendants have not been prejudiced. This assignment is without merit.
Finally, defendants raise objection to the court's allowing plaintiff Emerson to testify that Mr. McIntosh told him that ". . . [t]hey would probably take some property off the front of your property." Defendants contend this was irrelevant hearsay testimony and prejudicial to defendants. They do not give any indication of the manner in which they were prejudiced. While the court may have ruled erroneously, every erroneous ruling in the admission or exclusion of evidence does not ipso facto entitle the appealing party to a new trial. He must show that he was prejudiced and that the erroneous ruling probably influenced the jury verdict. Board of Education v. Lamm, 276 N.C. 487, 173 S.E.2d 281 (1970), and cases there cited. This assignment of error is overruled.
No error.
VAUGHN and MARTIN, JJ., concur.