233 N.C. 303 | N.C. | 1951
The question for decision is whether the evidence, taken in its most favorable light for the defendants, suffices to overcome the
Defendant’s testimony is to tbe effect tbat be complied witb tbe terms of tbe written contract in every respect, tbat is, be completed tbe bouse as agreed, duly executed and tendered deed witbin tbe time stipulated, and plaintiff declined to accept it or to go through witb tbe deal. Tbis is evidence from which tbe jury may infer tbat tbe plaintiff breached tbe contract of sale, thus entitling tbe defendant to treat it at an end and to sue for damages. Pope v. McPhail, 173 N.C. 238, 91 S.E. 947. Tbis, tbe defendant has done, and to minimize bis loss be immediately put tbe property back on tbe market for sale. Such is bis evidence.
It seems tbe defendant was well advised in timely tendering deed and demanding balance of purchase price, albeit tbe contract is one of sale and not an option. Winders v. Kenan, 161 N.C. 628, 77 S.E. 687. Speaking of its purpose and effect in Bateman v. Hopkins, 157 N.C. 470, 73 S.E. 133, Walker, J., witb bis usual thoroughness, analyzed tbe authorities and drew from them tbe following epitome: “Where tbe stipulations are mutual and dependent — that is, where tbe deed is to be delivered upon tbe payment of tbe price — an actual tender and demand by one party is necessary to put tbe other in default, and to cut off his right to treat tbe contract as still subsisting.” Hence, tbe effect of tbe tender and demand was “to cut off tbe plaintiff’s right to treat tbe contract as still subsisting,” or further to insist upon its performance. Bateman v. Hopkins, supra, 49 Am. Jur.—Specific Performance 40. This, of course, required tbe return of tbe money advanced on tbe purchase price. However, if tbe defendant suffered loss by reason of tbe plaintiff’s breach of tbe contract, be has bis action for such loss — here asserted by way of counterclaim, tbe plaintiff having sued to recover tbe advanced deposit. 4 Pomeroy’s Eq. Jur. (5 Ed.), Sec. 1407a, loc. cit. 1052.
Tbe plaintiff may have a different story to tell. There is no debate over tbe right of plaintiff to recover tbe advanced payment, if tbe contract were breached or abandoned by tbe defendant or mutually rescinded. Adams v. Beasley, 174 N.C. 118, 93 S.E. 454. And here, by agreement in open court, “unless tbe defendants showed a breach and prevailed on tbis counterclaim.”
We refrain from further animadversion, preferring to await tbe plaintiff’s version of the matter.
Tbe counterclaim would seem to be for the jury.
Reversed.