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. Mc- *827 Campbell v. Building and 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 andi requires no discussion. 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.”
jit 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 tkeep 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 *828the 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, sec. 26.” Elks v. Insurance Company, 159 N.C. 619, 625, 75 S.E. 808. “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 acceptance are essential elements; they constitute the agreement of 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 s'ensu, and their minds must meet as to all the terms.” Dodds v. Trust Co., 205 N.C. 153, 156, 170 S.E. 652.
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.