Bell v. . Brown
42 S.E.2d 92
N.C.
1947
Check Treatment
Denny, J.

The appellant only presents in his brief, this question: Was the plaintiff entitled to a directed verdict upon the evidence? His *322 remaining assignments of error will be considered as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N. C., 562.

Tbe admissions in the trial below eliminated all matters in controversy between tbe parties, except whether or not tbe plaintiff bad released tbe defendant, H. S. Brown, from the option dated 25 September, 1943, and whether or not tbe signature of tbe defendant, Gladys B. Brown, to tbe option and lease, was obtained by false and fraudulent representations.

Tbe execution of tbe lease and option having been admitted by tbe defendants, tbe burden of proof on tbe issues submitted rested upon them. Faust v. Rohr, 167 N. C., 360, 83 S. E., 622. And since tbe charge of tbe court is not brought forward in tbe record, it is presumed to have been given correctly in all respects. S. v. Hill, 223 N. C., 753, 28 S. E. (2d), 99; S. v. Wilson, 218 N. C., 769, 12 S. E. (2d), 654; S. v. Hargrove, 216 N. C., 570, 5 S. E. (2d), 852.

Tbe plaintiff insists tbe evidence is insufficient to support tbe verdict and is relying on the cases of Faw v. Whittington, 72 N. C., 321, and Miller v. Pierce, 104 N. C., 389, 10 S. E., 554. In Faw v. Whittington, supra, tbe question involved was one of abandonment rather than of waiver or rescission by parol. In Miller v. Pierce, supra, it is said: “While we are of tbe opinion that tbe contract may be discharged by matter in pais, there must, however, be something more than tbe mere oral agreement of tbe parties.” There was evidence in that case that tbe contract bad been rescinded by parol and evidence also of other acts inconsistent with tbe continuance of tbe contract.

However, it is said in May v. Getty, 140 N. C., 310, 53 S. E., 75: “It is now settled that tbe parties to a written contract may, by parol, rescind or by matter in pais abandon tbe same. Faw v. Whittington, 72 N. C., 321; Taylor v. Taylor, 112 N. C., 27; Holden v. Purefoy, 108 N. C., 163; Riley v. Jordan, 75 N. C., 180; Gorrell v. Alspaugh, 120 N. C., 362.” Faust v. Rohr, supra; Public Utilities Co. v. Bessemer City, 173 N. C., 482, 92 S. E., 331; Danville Mfg. Co. v. Gallivan Building Co., 177 N. C., 103, 97 S. E., 718; Wells v. Crumpler, 182 N. C., 350, 109 S. E., 49.

It would seem from an examination of our decisions that while a written contract, involving an interest in land, may be waived or rescinded by parol, but in tbe absence of a mutual agreement, an abandonment, or waiver of such a contract is to be inferred only from such positive and unequivocal acts and conduct as are clearly inconsistent with tbe contract. Aiken v. Atlantic Insurance Co., 173 N. C., 400, 92 S. E., 184. “Assuming tbe law to be that a vendee can abandon by matter m pais bis contract of purchase, it is clear that tbe acts and conduct constituting such abandonment must be positive, unequivocal and inconsistent with tbe contract. Tbe mere lapse of time or other delay in asserting bis claim unaccompanied by acts inconsistent with bis rights, *323 will not amount to a waiver or abandonment,” Faw v. Whittington, supra. R. R. v. McGuire, 171 N. C., 277, 88 S. E., 337; Wells v. Crumpler, supra; Mfg. Co. v. Lefkowitz, 204 N. C., 449, 168 S. E., 517; Furniture Co. v. Cole, 207 N. C., 840, 178 S. E., 579; Miller v. Teer, 220 N. C., 605, 18 S. E. (2d), 173.

Stacy, C. J., in speaking for the Court, in Stevens v. Turlington, 186 N. C., 191, 119 S. E., 210, said: “It may be well to note that evidence of a parol discharge of a written contract within the statute of frauds, or of an equitable estoppel matter in pais, must be ‘positive, unequivocal, and inconsistent with the contract.’ Faw v. Whittington, supra; Miller v. Pierce, supra. Here the allegations of the verified complaint, and other evidence offered, are of such character; but the credibility of such evidence, of course, on the hearing, will be a matter for the jury.-”

The evidence of the plaintiff tends to show that substantially all of the changes in the plans for the construction of the residence, were made prior to the execution of the lease and option. While the defendant offered evidence tending to show that plaintiff informed the defendant, H. S. Brown, that he was not interested in buying the property and pursuant to this understanding the defendant, who was a contractor, made changes in the plans at the request of the plaintiff and his wife and expended between $1,500.00 and $2,000.00 more in constructing the residence than would have been required for its completion according to the original plans. If the changes were made after the execution of the lease and option, at the request of the plaintiff and his wife, and such changes involved a substantial increase in the cost of the residence, as contended by the defendants, such request would have been inconsistent with the continuance of the option to purchase for a stipulated amount.

We think the evidence bearing on the waiver or rescission of the option, although sharply conflicting, was sufficient to carry the case to the jury on the first issue. The jury has decided the issue in, favor of the defendants, and upon this record the plaintiff is not entitled to his motion for a directed verdict in his favor.

The result will not be disturbed.

No error.