Aрpellants do not assign as error the denial of their motions for judgment of involuntary nonsuit. However, they seek indirectly to avail themselves of the accepted rule that a motion for judgment of involuntary nonsuit will be allowed when there is a material variance between allegation and proof.
Andrews v. Bruton, ante,
93,
The complaint, in paragraph 4, alleges the contract as stated above. However, appellants emphasize the following allegations of paragraph 3: “That said сontract was several months in the making and is in part verbal and partially in writing, same being composed of various verbal understandings and agreements, letters, which, taken together, constitute a definite and binding contract between the parties,” copies of these writings, marked Exhibits 1-19, both inclusive, being attached to and by reference made a part of the complaint. It is argued that the contract on which the case was tried was the Contractual Agreement bearing date of 14 February, 1953; and that this was a departure or variance from the сontract as alleged.
Appellants’ position is untenable. The correspondence indicates the relationship of the parties before and after the Contractual Agreement was signed. The correspondence, in some respects, throws light on cеrtain provisions of the Contractual Agreement but does not vary plaintiff’s obligations. For example, Brooks’ letter of 18 February, 1953, gives the description of the land referred to in Brooks’ letter of 5 February, 1953, and in plaintiff’s letter of 11 February, 1953. The two letters last mentioned set forth the contract as alleged. True, when Brooks prepared or had prepared the Contractual Agreement he modified the original agreement by inserting a new provision at variance therewith, to wit: “Deeds are to be delivered to payee (sic) at the completion of the final payment.” Since the only effect of this modification was to relieve Brooks of his obligation under the original agreement to deliver the deed when plaintiff made the down payment, defendants have no ground for complaint on account thereof. The Contractual Agreement was not signed until April, 1953. However, it appears that Brooks considered the contract as made in February, 1953, for upon that basis he makes the calculation that $220.00 was in arrears in February, 1954. The Contractual Agreement, a copy of whiсh was attached to the complaint and by reference made a part thereof, was the instrument by which they defined formally and finally the terms of their agreement. Correspondence prior thereto, while relevant to identify and describe the land, was superseded by the Contractual Agreement. This appears plainly from the complaint and attached exhibits. Correspondence subsequent thereto was relevant, as bearing upon the defendants’ alleged right to declare an abandonment of the contract by plaintiff rather than upon the terms of the contract. The court below correctly considered and tried plaintiff’s case on this basis. Indeed, *185 Brooks testified, referring to the Contractual Agreement: “That is our agreement; that is it.”
Appellants contend that the court was in error in instructing the jury that the Contractual Agreement was a contract of sale and purchase, as contended by plaintiff, rather than an option, as contended by defendants. This contention is without merit. By its terms, both parties were bdund, one to sell and the other to purchase.
The consideration for an option is executed (paid) when the contract is made. The unilateral obligation arising therefrom binds the prospective seller; but the prospective purchaser may or may not exercise his right to purchase upon the terms stated. I! he fails tо do so, the only result is the loss of the consideration given
for the option.
In a contract of sale and purchase, bilateral obligations arise, the purchaser’s obligation to pay the purchase price and the seller’s obligation to sell and convey constituting reciprоcal considerations. This distinction has been pointed out in many decisions including
Trogden v. Williams,
Two well-settled rules rest, at least in part, upon the distinction noted above,
viz.:
In the absence of special circumstances, (1) time is of the essence of a mere option to purсhase land,
Bateman v. Lumber Co.,
Plaintiff made the 1500.00 down payment. She made additional payments as stated which, although plaintiff was in arrears, were accepted by defendants without objection. The last such payment was plaintiff’s check of 14 January, 1954, for $80.00. No word of dissatisfaction was expressed by Brooks prior to his letter of 8 February, 1954. Plaintiff did nothing to indicate any intention on her part to abandon the contract. Both plaintiff and Brooks treated the contract as subsisting. That Brooks so regarded it appears plainly from the following excerpts from his testimony. “The latter part of February, 1954, I wired her *186 twice and called her over the telephone to get her to give up the property, call off the deal. So I could sell to this other party for cash.” Again: “I had accepted a deposit of $800.00 from one party offering to buy the land on a 30-day basis, provided I could сlear with my niece Katherine.”
Chief Justice Ruffin, in Falls v. Carpenter, supra, discusses at length the principles of equity applicable in such cases. In that case the purchaser was in arrears, but even so the seller continued to receive and accept from the purchaser payments on aсcount of the balance of purchase price. The seller, for reasons not material here, sold and conveyed the land to another party. The contention that the purchaser’s failure to meet payments when due constituted an abandonment by him of thе contract was soundly rejected. The conclusion reached is compressed in this sentence: “Having allowed it (the contract) to subsist after the default he (seller) cannot put an end to it by an action which, supposing it to subsist, is in violation of it; but to that end there must be a рrevious, formal and reasonable notice that if the purchaser does not fulfill it, the other party will not hold himself bound.”
In
Scarlett v. Hunter,
And in Faw v. Whittington, supra, Bynum, J., says: “Assuming the law to be that a vendee can abandon by matter in pais his contract of purchase, it is clear that the acts and conduct constituting such abandonment must be positive, unequivocal and inconsistent with the contract. The mere lapse of time or othеr delay in asserting his claim, unaccompanied by acts inconsistent with his rights, will not amount to a waiver or abandonment.”
It appears that the above principles, as stated by this Court, are in accord with rulings in like cases in other jurisdictions.
The parties, having recognized the contract as subsisting, notwithstanding the arrears in payments, defendants had no right to treat the contract as abandoned unless plaintiff failed to comply with its strict terms within a reаsonable time after definite notice from defendants that they would treat the contract as abandoned unless such strict compliance was made. Such demand and notice are prerequisite to placing the purchaser in default under circumstances such аs those that existed here.
It is noted that the Contractual Agreement contains no provision that the entire unpaid balance of purchase price shall become due upon failure of plaintiff to pay when due any one or more of the monthly installments. It is noted further that defendants’ attempted renunciation of the contract eliminated any necessity for a tender of the full purchase price if such were otherwise necessary,
Bateman v. Hopkins, 157
N.C. 470,
Appellants contend that the court in effect gave a peremptory instruction tо the jury in plaintiff’s favor on the first issue. It does not appear that this was done. However, upon the admitted documentary evidence and Brooks’ testimony it would appear that such peremptory instruction would have been appropriate.
Appellants make the further contention that the trial judge predicated his instructions relating to the Contractual Agreement upon the finding by the jury by the greater weight of the evidence “that these parties signed this agreement.” They call attention to Brooks’ testimony to the effect that he (Broоks) signed it and “signed it for Hazel-ine.” As to Hazeline B. Chambers, a sufficient answer to this contention is that plaintiff testified that Hazeline B. Chambers and Brooks had signed the contract before plaintiff received it. However, for reasons stated below, the failure of Osbia Chambers to sign it and whеther Hazeline B. Chambers signed it or Brooks signed her name are immaterial under the circumstances of this case.
In this Court defendants demurred ore tenus to the complaint for that it fails to allege facts sufficient to constitute a cause of action. The demurrer is overruled. While each ground assigned has bеen considered, none of the points raised require further discussion other than those relating to defendants Chambers. In this connection, the demurrer is predicated upon the failure of the complaint to allege that Hazeline B. Chambers executed any power оf attorney or other instrument authorizing Brooks to sell her land and upon the failure to allege the execution of the contract of sale by Osbia Chambers.
*188 This action was brought against Brooks and process was served only on him. The defendants Chambers entered the case by voluntary general appearances. They adopted the answer of Brooks, which in turn speaks time after time of “the defendants.” The answer is signed by counsel “for Defendants.” In his voluntary general appearance, defendant Osbia Chambers “hereby agrees that he will fully comply with any judgment which may be rendered in the action entitled as above.” Paragraph 16 of the complaint alleges that defendant Hazeline B. Chambers holds legal title to the land and that she is legally bound by the actions of Brooks. Defendants’ answer to paragraрh 16 admits in effect that Brooks had authority to execute the contract he made with plaintiff, but defendants characterize such contract as an option rather than as a contract of sale. The Statute of Frauds G.S. 22-2, is not pleaded. In the trial below, defendants Chаmbers raised no question concerning their obligation to perform whatever agreement Brooks may have made concerning the land. Neither of them testified at the trial. It may be fairly implied that neither was present at the trial. The conclusion is inescapable from a study of the records that the land, as Brooks stated to plaintiff in his letter of 18 February, 1953, belonged to him and he caused the record title to be put in the name of Hazeline B. Chambers for purposes of his own. Although parties, neither Hazel-ine B. Chambers nor Osbia Chambers has assertеd ownership of the land.
Defendants’ position in the trial below, as stated in the agreed statement of case on appeal, was as follows:
“The. defendants contended that all of said writings and oral statements constituted an option to purchase the realty involved in which time was the essence of the agreement and failure to pay promptly forfeited all of the plaintiff’s rights and that defendant (sic) breached said contract and thereby lost all of her rights.”
No error prejudicial to defendants has been made to appear. Indeed, under the undisputed evidence, the result could hardly have been otherwise.
No error.