
114 S.E.2d 820 (1960)
252 N.C. 824
Frank J. YEAGER
v.
Beulah L. DOBBINS, Executrix under the Will of C. N. Dobbins, Deceased.
No. 377.
Supreme Court of North Carolina.
June 30, 1960.
*822 Fletcher & Lake, Raleigh, for plaintiff, appellant.
Sanford, Phillips, McCoy & Weaver, Fayetteville, for defendant, appellee.
MOORE, Justice.
The complaint alleges that the agreement or contract on the part of C. N. Dobbins is in writing. Plaintiff amended the complaint and alleged that the writing relied on is the letter of C. N. Dobbins dated 21 October 1948. It is not alleged that Dobbins agreed or offered to do anything more than appears in the letter.
The question for decision is whether the letter constitutes a contract or offer to contract sufficient to support an action for damages for breach of its terms.
Where the alleged contract is made a part of the complaint and is relied on 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. Williamson v. Miller, 231 N.C. 722, 726, 58 S.E.2d 743.
The inquiry here does not involve the statute of frauds, G.S. § 22-2. Plaintiff alleges that the agreement on the part of C. N. Dobbins is in writing. Furthermore, the statute of frauds is an affirmative defense and must be pleaded. Weant v. McCanless, 235 N.C. 384, 386, 70 S.E.2d 196. This defense may not be raised by demurrer. McCampbell v. Valdese Building & Loan Ass'n, 231 N.C. 647, 651, 58 S. E.2d 617.
Upon proper construction of the letter in question depends the propriety of the judgment sustaining the demurrer. The letter is not a complete contract within itself. This is obvious and requires no discussion. *823 The real question is whether it contains a valid offer in express terms or by necessary implication, the acceptance of which and the performance of conditions therein contained give rise to a binding contract, the breach of which will support an action for damages.
In the analysis and construction of the contents of the letter, certain facts and conclusions inevitably emerge. The letter is in answer to an inquiry by plaintiff, the writer's son-in-law. As to whether he will come to North Carolina is for decision of plaintiff. Farming is hard work, the writer likes it but is about through except in an advisory capacity. He would like to have his daughter and granddaughters near him. He has two sons, Charles and James, who have not finished school.
The writer comes to the main purpose of the letter in this wise: "Now to answer more specifically your questions." Here he discusses some ideas he has concerning the farm. He had hoped that plaintiff, Charles and James could and would take the farm over and operate it as a jointly owned piece of property. There is work enough for all. However he realizes that partnerships are "hard to make operate." It would probably be as well or better to divide the place three ways but it should be operated as a unit. He doesn't know whether James or Charles will want to farm when they are older. Plaintiff might not like it if he tried it. Writer would like for any of the three boys to have the farm "only" if they "would keep it and work it."
It is our opinion that the foregoing portion of the letter does not comprise an offer to convey or devise the farm or any part thereof. The writer is merely discussing ideas and possibilities. He is giving background information for possible future disposition of the farm. He has reached no definite decision. He wants plaintiff and writer's sons to have the farm only if they should like farming, that is, "would keep it and work it." It would appear that the writer does not wish to convey the land to plaintiff, Charles or James until he is convinced they like farming and want to farm. There is no positive offer of the land on any definite conditions. The writer is reserving his decision as to the disposition of the farm until future developments disclose the attitudes of plaintiff and the sons toward farming. This is borne out by his summary or conclusion of the matter.
The writer concludes by making the following proposal: "I would like to turn the whole thing over to you to make as much as you can until Charles gets through school and comes home; then the two of you do likewise until James can join you and then the three of you carry on from there." It is clear that writer offers an interim arrangement. Plaintiff may come to North Carolina, take over the farm and make as much as he can until Charles and James finish school. Then the three are to "carry on from there." There is still no offer to convey or devise. Again final decision and disposition must await developments.
"When an offer and acceptance are relied on to make a contract, `The offer must be one which is intended of itself to create legal relations on acceptance. It must not be an offer intended merely to open negotiations, which will ultimately result in a contract, or intended to call forth an offer in legal form from the party to whom it is addressed.' 1 Page on Contracts, § 26." Elks v. North State Ins. Co., 159 N.C. 619, 625, 75 S.E. 808, 811. "If a proposal is one merely to open negotiations which may or may not ultimately result in a contract, it is not binding though accepted. * * * Care should be taken not to construe as offers letters which are intended merely as preliminary negotiations." 12 Am.Jur., Contracts, sec. 28, p. 526; Restatement of the Law of Contracts, sec. 25, p. 31.
"In the formation of a contract an offer and an acceptance are essential elements; they constitute the agreement of *824 the parties. The offer must be communicated, must be complete, and must be accepted in its exact terms. (Citing authority.) Mutuality of agreement is indispensable; the parties must assent to the same thing in the same sense, idem re et sensu, and their minds must meet as to all the terms." Dodds v. St. Louis Union Trust Co., 205 N.C. 153, 156, 170 S.E. 652, 653.
We are of the opinion, and we so hold, that C. N. Dobbins did not make an offer to convey or devise the farm that will support plaintiff's contention and theory of the case. The court below properly sustained the demurrer.
It is observed that the demurrer was sustained but the action was not dismissed. G.S. § 1-131. As to whether the allegations are sufficient to support a recovery for betterments or for quantum meruit, such inquiry does not arise on the demurrer or on this appeal. Pamlico County v. Davis, 249 N.C. 648, 652, 107 S.E.2d 306; Stewart v. Wyrick, 228 N.C. 429, 433, 45 S.E.2d 764.
The judgment below is
Affirmed.
PARKER and HIGGINS, Justices (dissenting).
The original complaint alleged that C. N. Dobbins owned a farm in Yadkin County containing 210 acres. "On or about October 21, 1948, C. N. Dobbins, in writing, contracted with and promised the plaintiff that if the plaintiff would give up his employment in the insurance business and his residence in Landsdowne, Pennsylvania, would remove himself and his family to the farm described in paragraph four, * * * and would take over and operate the farm, keep it and work it, C. N. Dobbins, in consideration of the plaintiff's doing so, would convey the farm to the plaintiff prior to the death of C. N. Dobbins, or, if such conveyance was not made prior to his death, he would devise the farm to the plaintiff by his will. The contract and promise so made by C. N. Dobbins to the plaintiff were subject to the condition that if Charles N. Dobbins, Jr., and James Dobbins, the sons of C. N. Dobbins, or either of them, desired to join with the plaintiff in taking over and operating * * * the farm * * * and if they, or either of them, did so join with the plaintiff * * * C. N. Dobbins would so convey or devise the farm, in equal shares, to the plaintiff and such of his said sons as did so join with the plaintiff, * * * but if neither of his said sons so joined * * * then C. N. Dobbins would so convey or devise the entire farm to the plaintiff alone."
"On or about January 5, 1949, the plaintiff, in consideration of and in reliance upon the contract and promise of C. N. Dobbins, * * * resigned his position of employment in the insurance business * * * sold his home * * * removed * * * to Yadkin County * * * took over the operation of the farm and placed improvements thereon * * * of the value of $50,000." Neither of the sons joined the plaintiff in taking over and operating the farm. C. N. Dobbins died suddenly on June 15, 1958. "Notwithstanding his contract and promise as set forth in paragraph five, * * * and notwithstanding the full performance and fulfillment by the plaintiff of each and every condition * * * in the promise of C. N. Dobbins, * * * C. N. Dobbins did not convey or devise the farm, * * * but in breach of his contract and promise * * * devised the said farm together with all other real and personal property * * * to his wife, Beulah L. Dobbins, and appointed her the executrix of his will."
The plaintiff filed a claim against the estate for damages resulting to him from the breach of the contract on the part of C. N. Dobbins. The administrator denied the claim and the plaintiff brought this action for a breach of contract. Upon motion of *825 defendant and order of the court the plaintiff amended the complaint by attaching the Dobbins letterwhich letter shows that it was written as a reply to the plaintiff's letter to Mr. Dobbins. The plaintiff's letter, therefore, may be competent as evidence to explain and to throw light on the Dobbins letter.
The plaintiff has alleged a contract, performance on his part, breach on the part of Mr. Dobbins, and damages. For the purpose of testing the sufficiency of the complaint, the demurrer admits all facts well pleaded. The ultimate factual allegations in a complaint must be controvertednot by demurrer, but by answer. The complaint, liberally construed, states a cause of action. When the answer and evidence are in, the court will then be in a position to determine with safety and accuracy the sufficiency of the evidence to support the plaintiff's allegation. We think the demurrer should have been overruled.
