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Anderson Chevrolet/Olds Inc. v. Higgins

Filed: June 15, 1982.

ANDERSON CHEVROLET/OLDS, INC.
v.
PHYLLIS HIGGINS, D/B/A HIGGINS INDUSTRIES



Appeal by defendant from Snow, Judge. Judgment entered 9 April 1981 in District Court, Haywood County. Heard in the Court of Appeals 30 April 1982.

Whichard, Judge. Judges Webb and Wells concur.

Whichard

No exceptions appear in the record. "[T]he scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record . . ." Rule 10(a), Rules of Appellate Procedure. The rule provides, however, that notwithstanding the absence of exceptions, an appeal duly taken from a final judgment may present for review, if properly raised in the brief, the question of whether the judgment is supported by the findings of fact and conclusions of law. Id. See Swygert v. Swygert, 46 N.C. App. 173, 180-81, 264 S.E.2d 902, 907 (1980).

No exceptions to the findings of fact appear. When no exceptions are made to the findings of fact, they are presumed to be supported by competent evidence and are binding on appeal. Grimes v. Sea & Sky Corp., 50 N.C. App. 654, 656, 274 S.E.2d 877, 878 (1981); In re Hodges, 49 N.C. App. 189, 190, 270 S.E.2d 599, 599-600 80); Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962).

We consider the errors argued in defendant's brief, then, to determine whether the findings support the conclusions entered.

The court made the following "finding of fact":

That the acts, statements, and conduct of the Defendant and her authorized employees, and the reasonable inferences arising therefrom, evinced the intention of Defendant to contract with the Plaintiff for the necessary repairs to her

leased vehicle, constituted a manifestation and expression of assent necessary to form a contract and by reasonable inference and implication constituted a contract between Plaintiff and Defendant.

Defendant first contends no such contract existed, because the evidence fails to show a meeting of the minds or mutuality of consent. Because defendant failed to except to the foregoing finding, the question of sufficiency of the evidence to support it does not arise. It is deemed supported by competent evidence. Grimes, supra. The "finding of fact" is, however, at least in part, in actuality a conclusion of law. Whether the findings of fact support the conclusion is the principal issue presented.

A contract to repair the leased vehicle would be one implied in fact, since there was clearly no express or written contract. Our Supreme Court has stated:

"A 'contract implied in fact,' . . . arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation is implied or presumed from their acts, or, as it has been otherwise stated, where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract." 17 C.J.S., Contracts § 4(b) (1963). An implied contract is valid and enforceable as if it were express or written. "[A]part from the mode of proving the fact of mutual assent, there is no difference at all in legal effect between express and contracts implied in fact." Simpson, Contracts, § 5 (2d ed. 1965). . . . The essence of any contract is the mutual assent of both parties to the terms of the agreement so as to establish a meeting of the minds. Pike v. Wachovia Bank & Trust Co., 274 N.C. 1, 161 S.E.2d 453 (1968). This mutual assent and the effectuation of the parties' intent is normally accomplished through the mechanism of offer and acceptance . . . With regard to a contract implied in fact, one looks not to some express agreement, but to the actions of the parties showing an implied offer and acceptance.

Snyder v. Freeman, 300 N.C. 204, 217-18, 266 S.E.2d 593, 602 (1980). The relationship between the parties, or other circumstances, may justify the offeror in assuming that ...


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