184 S.E. 86 | N.C. | 1936
This action is over certain agreements, the last one only we think necessary to set forth to show the material aspect of the controversy: *528
"SUPPLEMENTAL AGREEMENT OF D. J. BREECE AND C. H. FARRELL.
"Standard Oil Company of New Jersey, Charlotte, North Carolina.
"GENTLEMEN:
"We, the undersigned D. J. Breece, owner and lessor of the certain piece of property located in the city of Fayetteville, known as the `Person Street Filling Station,' and C. H. Farrell, the lessee of the said service station, hereby acknowledge payment from the Standard Oil Company of rent in advance on the said Person Street Filling Station in the sum of $1,500, to be applied to the basis of 1c per gallon on the gasoline and other motor fuel sold through the said station from the date that certain sub-lease from C. H. Farrell to Standard Oil Company of New Jersey, dated February 27, 1931, becomes effective until 150,000 gallons have been sold. Or otherwise refunded.
"It is further understood and agreed that the rights of the Standard Oil Company of New Jersey under the sub-lease given it by Mr. C. H. Farrell shall not be in any way annulled or abrogated until there has been sold through this service station 150,000 gallons of `Standard Gasoline and Esso,' and that no additional rental will be required of the Standard Oil Company of New Jersey by either Mr. C. H. Farrell or Mr. D. J. Breece, until after the sale of the 150,000 gallons of `Standard Gasoline and Esso' through the station. Or otherwise refunded.
"H. T. SAWYER, C. H. FARRELL, H. T. SAWYER, D. J. BREECE."
(Duly acknowledged before a notary public, 15 June, 1932, and recorded.)
The plaintiff, by way of reply to defendant's setting up the above supplemental agreement of D. J. Breece and C. H. Farrell as a waiver or estoppel, alleges: "That it is denied by this plaintiff that under the terms of the written instrument, set out in paragraph 5 of the defendant's answer, that this plaintiff waived his right to collect the rents accruing to him under the terms of the lease from C. H. Farrell, either from the said C. H. Farrell or the Standard Oil Company, but if, upon a proper interpretation and construction of said paper writing it should be determined that this plaintiff had waived his rights under said paper writing to collect said rents from the Standard Oil Company, this plaintiff avers and alleges that his signature was obtained to said instrument by the false and fraudulent statements of the defendant, which statements were known by said defendant at the time they were made to be *529 false and fraudulent, and were made for the purpose of deceiving this plaintiff, which statements did actually deceive this plaintiff and cause him to place his signature to said paper writing, the plaintiff relying upon the statements made to him by the said H. T. Sawyer, at the time he signed said paper writing, to the effect that it was not intended as a waiver to his rights to collect the rents as they accrued to him from the Standard Oil Company in case the Standard Oil Company should assume the operation of said service station, and the said defendant is now attempting, after false and fraudulent procuring his signature to said paper writing, to use the same to deprive this plaintiff of the rents accruing to him under his lease."
The judgment of the court below is as follows: "This cause coming on to be heard at this term of the court, before the undersigned judge and jury, and after the pleadings were read, and upon admission of the counsel for the plaintiff that the defendant Standard Oil Company of New Jersey had not sold more than one hundred and fifty thousand (150,000) gallons of gasoline, as set out in the contract or receipt, registered in Book 17, at page 387, registry of Cumberland County, and referred to in the pleadings; and the defendant, through its counsel, having moved for judgment upon the pleadings; and the court being of the opinion, after argument of the counsel and upon admissions of the plaintiff, that the motion should be sustained. It is, thereupon, ordered, adjudged, and decreed that the plaintiff recover nothing on the cause of action alleged in the complaint, and that the defendant recover its costs, to be taxed by the clerk. J. Paul Frizzelle, Judge presiding."
The plaintiff made the following exceptions and assignments of error, and appealed to the Supreme Court: "(1) That the court erred in allowing defendant's motion for judgment upon the pleadings and admission as shown by plaintiff's exception. (2) That the court erred in refusing to submit the issues tendered by the plaintiff and in refusing to allow plaintiff to offer evidence in support of the issues as shown by plaintiff's exception. (3) That the court erred in signing judgment upon the pleadings and admission, as shown by plaintiff's exception." The only question involved in this controversy is: Did the court below err in allowing the defendant's motion for judgment upon the pleadings and the signing of the judgment as set out in the record? We think so.
The plaintiff sets up actionable fraud or deceit to rescind the "Supplemental Agreement of D. J. Breece and C. H. Farrell." The allegations of plaintiff in this respect fully comply with the rule as to the necessary *530
averments or ingredients of fraud to rescind a contract. Corley Co. v.Griggs,
In Belk's Dept. Store v. Ins. Co.,
We see no ambiguity in the supplemental agreement. The language is plain and clear. The only relief is actionable fraud or deceit to rescind it, which is made in plaintiff's reply. The allegations in plaintiff's reply setting forth the fraud is well pleaded. Whether on a trial it can be substantiated is another question.
In Colt v. Kimball,
In Dorrity v. Building Loan Assn.,
We think, on the allegations of plaintiff in his reply setting up fraud, his exceptions and assignments of error are well taken.
For the reasons given, the judgment is
Reversed.