*1 1895. TERM, N. O.] COMPANY V. GUTHRIE. IMPROVEMENT the State for forfeiture facts which might proceed upon an inde- franchise, would not constitute of the Company’s in favor of the cause of action defendant. pendent to take case out of the We no sufficient reason this see submit to of rule that the plaintiff may general when makes an intimation the Court non-suit appeal, n conclusion of the him, adverse to at the evidence. far as it allowed the Court,
The so ruling judg- was not erroneous. entered, ment of non-suit to be
No Error.. THE LAND AND IMPROVEMENT DURHAM CONSOLIDATED A. et al.
COMPANY v. W. GUTHRIE Redd on Contract Action to Recover Money for Land— Fraud Parol Contract—Statute Lcmd Sale of — — Vendee. Repudiation (See. Code) only requires that 1554 of of Frauds
1. Statute writing, signed by be in the sale of land shall a contract therewith,” charged and does not render' party to be “the description merely. a defective contains void a contract land, signed if vendor concerning the sale of A contract 3. only, but not the vendee. binds him land, repu- vendor If, parol sale of contract for the under a money paid may sale, recover back the vendee diates the contract. him under except at land is not void for the sale of parol contract 4. A plead plead and does party allowed to who is instance of the repudiates Frauds, it neither who the Statute it; hence, advantage any or benefit under can take repu- of land parol for the sale in a the vendee o. Where money has which he same, he cannot diates the vendor, willing to who is able and to the thereunder his contract. COURT. IN THE SUENEME [116 COMPANY V. GrTITHRIE. *2 repudiates in a contract for the land
fi. the vendee Where sale^af compliance same, by dema'nd the vendee for a the therewith, after disposes land, the vendor of the and thereafter not, brought in an more 12 the vendee can action than money paid by comply, after his refusal to months to the vendor. him under such contract speculative profits and will not be allowed to form 7.“Uncertain part recovery damages in an action for for breach of of the contract. Green, J., and a at Janu- tried before jury, Civil action, of Dubham Court. The action Term, 1895, Superior
uary to recover or was by money paid brought plaintiff The defendants to thb defendants. “loaned” pleaded and from a in favor of the defend- claim counter claim, on their counter ants for plaintiff appealed. $330 Fowler, & had contracted with Ferrell The defendants in Durham and held their lands Hides for certain County was In when the for title money paid. bonds purchase and defendants entered into the follow- Exhibit B the same marked concerning agreement ing Durham, Consolidated 1, “October 1890—To the lands: We will let take the & you Land Company: Improvement as us, and on the same terms at the actual cost property are about as follows: Cash it, which payments, we bought - date of our in one from year purchase— $2500 $4275— from date of our months purchase. eighteen $1600 cent, at 6 inter- of these is time-payments per About $3000 You are to be at all balance at 8 cent. est, expense per -it and putting selling property, of advertising for sale to the best condition advantage, in proper whatever streets improvements making opening date, from one to sell the year property necessary from the the actual only pro- expenses after deducting is to be remainder of the sale, proceeds ceeds n equally us yourselves. divided between Guthrie, T. Carr S. Morgan”. Morgan,
(Signed) TERM, C.] COMPANY V. GrUTHRIE. above plaintiffs accepted proposition, paid $2500, cash sum of took of the lands, cut possession wood, trees, etc., carried received rents and away remained for more than twelve months. In possession March, 1892, the defendants notified the they (de- were sued Ferrell for his then fendants) money due, just : added “¥e request you comply terms of our contract with and make yon, payment purchase and take title deeds for all money property.” Nothing more was or done and in the Spring of 1892 the defendants resumed possession lands. *3 the Afterwards, demanded that plaintiffs the $2500 be back, which was refused paid defendants. In by Septem- ber, 1893, the commenced this plaintiffs action to recover and filed their $2500 which the complaint defendants a answered, set counter claim for the up value of wood, timber, rent, etc., received during plaintiff’s possession. Flis Honor submitted these issues:
1. Are the defendants indebted to the if so in what sum? No.
2. What is the value of the timber and,,rents received from the lands described? by $330. .
The court rendered in favor of the defendants to the verdict and each according party appealed.
Messrs. H. F. Busbee and Shepherd, c&Fou- Manning shee, for plaintiffs (appellants).
Messrs. J. IF".Graham and Boone c&Boone, for defend- ants. J.: C. We find from an examination Fairoloth, that the main is, Can question
record recover back the in $2500 paid part performance of the agreement out in the set statement of the case?
The action does not seek to enforce the contract but to
384 THE IN SUENEME COURT. [116 V. COMPANY GrTJTHRIE. bade recover the complaint money paid, alleges written is defective its that the agreement descriptive and is therefore void the statute of frauds can- by part, a enforced the defendants bill for not be against specific The answer and When defendants say, you performance. we are able agreement, willing your ready, perform deeds our part by you fee-simple to giving good boundaries, which are well to the true known according reason of and recognized you, your acceptance to than of the lands for more twelve months. possession rests position upon misconception plaintiff’s Sec. frauds, Code, 1554. statute of only statute contract shall be that the writing signed by requires A So that if con to be therewith.” “the charged B, to of land sell tract to whose promise tracts writing A be to not in would but bound writing, perform, to pay he if saw avail himself not, B would proper B Welch, C., v. N. 200. If A and con Love statute. the land the vendor sale by parol, tract contract, vendee may elects repudiate he has under the contract. Wilkie back amount A for land is Womble, C., not parol v. *4 instance of the who is allowed at the void, party except who statute, the and neither does and plead repu or can take benefit under advantage the any diates in which is left the condition in he it. repudiator the time of the abandonment. The at plain himself finds it because is admitted assumpsit, cannot tiffs contract, a so as it had exists long special that they the counts. The fall back-on common cases cannot they C., 95, N. and Foust v. Railroad, v. Shoffner, of Green “all fours” 242, are on case before Phil. Equity, first it was case, In the that defend verbally ns. agreed tract of land to certain ant would convey plaintiff, n TERM, O.] V. COMPANY GUTHRIE. as soon as be would deliver to an defendant number agreed of cords of-wood. Plaintiff delivered of the wood apart and sued defendant for the quit, value so much wood as -he had delivered. said, Defendant I am ready and able to title to the .give land as soon you good as you perform contract, your part the Court held that could not recover. plaintiff
It was conceded that defendants had otherwise disposed of the land before this action was and it was begun, urged counsel that inasmuch as defendants were not'in a posi- tion to to title at convey time, therefore plaintiffs to recover. That plaintiffs is without ought argument it force, because the fact that more than twelve ignores months thereto’the demand had plaintiffs failed prior upon their due, then it obligation past would have been unreasonable to defendants to hold their require an state until it suited the property unproductive pleas- ure of.the to make first move.
We think it to consider unnecessary the numerous other raised at the trial and on points assum- argument, each one of them in favor of the ing every with the above as it settled, is, the result would question be the same. Affirmed. Judgment
DEFENDANTS’ APPEAL IN SAME CASE. C. J.: This appeal dependent upon Eaiecloth, same facts as are found the plaintiffs’ appeal. recovered, in the defendants opinion value jury, their actual asked damages for the property, would have which been thought realized if profits they their had with more pressed speculations energy with the in accordance His Honor agreement. thought near too too these were uncertain out of and in sight, *5 him. this we Affirmed. agree 116—25