HARRIS-TEETER SUPERMARKETS, INC.
v.
Alice W. HAMPTON.
No. 8514SC72.
Court of Appeals of North Carolina.
September 17, 1985.*83 Powe, Porter and Alphin by W. Travis Porter and David E. Fox, Durham, for plaintiff-appellant.
Womble, Carlyle, Sandridge & Rice by Deborah H. Hartzog and William C. Matthews, Jr., Raleigh, for defendant-appellee.
ARNOLD, Judge.
The defendant's motion for summary judgment was based upon two grounds. She argued that the option was not timely exercised, and that the conditions precedent to her obligations were not fulfilled. Summary judgment is appropriate only where there are no genuine and material issues of fact to be resolved. Texaco, Inc. v. Creel, 310 N.C. 695, 314 S.E.2d 506 (1984). However, if summary judgment was proper for either of these reasons, the judgment must be affirmed.
First we will determine whether summary judgment based upon Mrs. Hampton's claim that she was not required to perform because Harris-Teeter had failed to perform a condition precedent to the exercise of the option. She alleged that Harris-Teeter had failed to purchase the property owned by the Blackwoods and the Halls, thus they had failed to meet a condition precedent to its exercise of the option to purchase her property. Harris-Teeter admitted that they had not purchased the Blackwood and Hall property, however, they argue that the purchase was not a condition precedent to the exercise of their option. Conditions precedent are not favored by our law, and contract provisions will not be found to be conditions precedent in the absence of language plainly requiring such a construction. See, Financial Services v. Capital Funds, 23 N.C.App. 377, 209 S.E.2d 423 (1974), aff'd 288 N.C. 122, 217 S.E.2d 551 (1975). Furthermore, whether conditions are conditions precedent or conditions subsequent depends entirely upon the intention of the parties shown by the contract, as construed in the light of the circumstances of the case, the nature of the contract, the relation of the parties thereto, and other evidence admissible to aid the court in determining the intention of the parties. Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590 (1962). Issues regarding the intent of the parties are issues of fact. Thus, summary judgment was not properly granted on this ground.
Next we must determine whether summary judgment was proper based upon Mrs. Hampton's contention that the option was not timely exercised. Mrs. Hampton argues that under the clear terms of the contract, Harris-Teeter's right to exercise their option expired on 9 April 1984 one day prior to the date of acceptance. Harris-Teeter argues that there is an issue of fact regarding when the option expired and that as such this is not a proper subject for summary judgment.
When the terms of a contract are clear and unambiguous the express terms of the contract control in determining its meaning. Crockett v. Savings & Loan Assoc., 289 N.C. 620, 224 S.E.2d 580 (1976). However, if there is some ambiguity on the face of the document it may be explained by extrinsic evidence, and the meaning of the document becomes a question for the jury, under proper instructions, to determine. Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962). The option in the case sub judice contains an issue for the jury. It is unclear from the face of the document when the contract was made. There are two dates, October 12, 1983, and October 17, 1983, present on different portions of the document both of which purport to govern when the contract was executed. Since it is unclear when the contract *84 was made, it is unclear from the terms of the contract whether the option to purchase was to be for a period of ninety days from the execution of the contract or merely until the date set forth in the option. This ambiguity is a question which can only be resolved by the admission of extrinsic evidence. The plaintiff offered evidence in the form of affidavits sufficient to create an issue of material fact regarding the duration of the lease. This showing was sufficient to defeat Mrs. Hampton's motion for summary judgment. The judgment of the trial court is, therefore,
Reversed.
HEDRICK, C.J., and COZORT, J., concur.