17 N.C. 363 | N.C. | 1833
To this bill the defendant pleaded the act of 1819 (Rev., ch. 1016), avoiding parol contracts for the sale of lands; and as to the residue of the bill, demurred for want of equity.
DANIEL, J., on the Fall Circuit of 1833, overruled the plea and demurrer, whereupon the defendant appealed. The argument of this case has brought before us the merits of the bill, and has been conducted as though a general demurrer thereto had been put in by the defendant. That the parties may not be wholly disappointed as to the objects of this appeal, we shall express our opinion upon matters involved in the discussion, although a decision of them is not necessary for the judgment which we shall render. We think that the bill in its present form does not make out a case which entitles the plaintiff to relief. The agreement which it states to have been in fact made, but to which it denies legal validity, because not signed by the parties, consists indeed of many parts, but is yet essentially one.
It is an agreement of copartnership, in which provision is made for the constitution of its capital stock by a stipulation that the defendant will bring into the stock his mills and mill tract, and that the plaintiffs shall pay him an agreed sum for this advance on his part. The contract involves an agreement for the sale of lands, comes within the *294 (365) purview of the act of 1819, and may be avoided, unless signed as the act directs. But an avoidance does not affect that part only of the contract which is confined to the sale of the land, but affects the entire contract. Neither of the parties, on discovering this part to be inconvenient, can require to have the residue of the agreement executed. Unless one of the parties objects, because of the statute, the contract stands entire. If either objects, it is avoided in toto.
The plaintiffs, according to the frame of this bill, have elected to avoid the parol agreement, and have, as we have seen, no right to ask for its execution in part. But they ask for compensation because of their advances made and losses incurred upon the confidence that such agreement would be faithfully executed. But if, by their own act, the execution of it has been prevented — if they have voluntarily abandoned the agreement — where is their injury, and what their title to redress? In conscience, they should have proceeded to fulfill the agreement on their part as though it had been signed, so long as the defendant admitted its efficacy. The law has put it into their power to deny it efficacy at their option; but it will not make the defendant pay them for taking this advantage.
Wherever a demand is preferred in any court for remuneration, because of the avoidance of a contract under the statute of frauds, the court will not be brought into activity except at the instance of him who offers to execute the agreement, or who has been willing and ready to execute it.
But in the exercise of our limited jurisdiction upon this appeal from an interlocutory order, we apprehend that we can only revise the decision below declaring the demurrer and plea bad. The demurrer is bad because it does not specify the particular parts of the bill demurred unto.Milfod Pl., 173; Chetwynd v. Lindon, 2 Ves., Ser., 450; Robinson v.Thompson, 2 Ves Bea., 118; Weatherhead v. Blackburn, ib., 121. The demurrer is to those parts of the bill which are not covered by the plea. This one furnishes a sufficient reason for overruling it, (366) but it is the more vicious in this case because the plea extends to all the accounts arising out of the sale and joint ownership stated in the bill, every account asked may be considered as arising thereout, and the court cannot distinctly see what part of the bill is left uncovered by the plea, and to which the defendant demurs. The plea is entirely inapplicable, for the claim of the plaintiffs (such as it is) is actually founded upon the invalidity of the unsigned agreement.
We shall, therefore, cause our opinion to be certified to the court below that it has not erred in overruling the demurrer and plea of the *295 defendant; and that said court shall proceed further with said cause as it may be hereafter moved by the parties and its discretion may direct.
PER CURIAM. Decree affirmed.
Cited: McCracken v. McCracken,
