Ray HAMM and Roe Church
v.
TEXACO INCORPORATED et al.
No. 7323DC153.
Court of Appeals of North Carolina.
February 28, 1973.*561 Arnold L. Young, Sparta, for plaintiff-appellants.
Hayes & Hayes by Kyle Hayes and Douglas L. Winslow, North Wilkesboro, for defendant-appellees.
BROCK, Judge.
Plaintiffs assign as error the trial judge's entry of a judgment, pursuant to G.S. § 1A-1, Rule 41(b), dismissing the plaintiffs' action. This assignment of error presents the question whether there was sufficient evidence, when viewed in the light most favorable to the plaintiffs, to establish the existence of a contract between the plaintiffs and the defendants.
In Horton v. Refining Company, 255 N. C. 675, 122 S.E.2d 716 (1961), a case factually similar to the one at bar, Chief Justice Winborne stated:
"In Williamson v. Miller, 231 N.C. 722, 58 S.E.2d 743, 747, this Court said: `"To be binding, the terms of a contract must be definite and certain or capable of being made so." (Citations omitted).'
In Elks v. North State Ins. Co., supra [159 N.C. 619, 75 S.E. 810], this Court said: `It is elementary that it is necessary that the minds of the parties meet upon a definite proposition. "There is *562 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." 1 Pars.Cont., 475.'"
In the case at bar, the evidence presented by the plaintiffs tends to show negotiations by the parties which were intended to culminate in a "five-year contract" in written form.
In Elks v. North State Ins. Co., supra, it is said that where 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." Here, there is no evidence which would tend to show that the parties' minds met upon terms sufficiently definite to be enforced. Rather, the evidence tends to show that there was to be a written agreement executed by both parties and that there was to be no contract until the writing was executed.
The judgment entered in this case recites that the cause was heard before the judge and jury. The judgment also recites that defendant moved for dismissal under Rule 41. G.S. § 1A-1, Rule 41 (b) is applicable where a cause is tried before the judge without a jury; a motion to dismiss under this rule is not properly available in cases being tried by jury. The proper motion would have been a motion for directed verdict under Rule 50(a). General Rules of Practice for the Superior and District Courts adopted by the Supreme Court on 14 May 1970, pursuant to G.S. § 7A-34, provide in Rule 6 that "(a)ll motions . . . shall state the rule number or numbers under which the movant is proceeding." In this case movants stated that they were proceeding under Rule 41. Obviously movants were not entitled to relief under Rule 41 because the case was being tried before a jury. However, plaintiffs made no objection to the improper motion, and they may not raise the question for the first time on appeal. We, therefore, treat the judgment of dismissal in the present case as having been entered pursuant to a motion for directed verdict under Rule 50(a). See Pergerson v. Williams, 9 N.C.App. 512, 176 S.E.2d 885.
Affirmed.
MORRIS and HEDRICK, JJ., concur.