53 N.C. 69 | N.C. | 1860
The plaintiff declared in three counts:
First. For the price of the slaves.
Second. For breach of the contract in not complying with the terms of sale.
Third. For the difference between the price at the first and second sales.
The plaintiffs, as trustees, under a deed of trust from one John D. Pearsall, had title to remainder in certain slaves after the life estate of Mrs. Pearsall, who was still living. As trustees, they (70) offered the estate vested in them (to wit, the said remainder) for sale at public auction, on which occasion the crier made known as the terms of sale, which were in writing and publicly read by him, that the property would be sold on a credit of three and six months, and the purchaser would be required to give a note with two approved sureties, *54 with interest from date, before the property changed; and that if any one bid off the property and failed to comply with the conditions it was to be resold, and the first purchaser was to be liable for the deficiency in the price at the second sale, if any, and the property was not to be delivered until after the death of Mrs. Pearsall, the tenant for life. The defendant, James Kelly, was the last and highest bidder for the property at the price of $600, but he subsequently refused to give note and security; whereupon, it was again exposed to sale in the presence of the defendant and knocked off to one Kornegay at $275.
The court intimated an opinion that the plaintiff could not recover, whereupon he submitted to a nonsuit and appealed. The contract which is the subject of this suit falls within the provisions of the statute of frauds, incorporated in our Code, chap. 50, sec. 11, and in no part thereof can be enforced without a memorandum in writing signed by the party to be charged therewith. It is not divisible and exempt from the operation of the law in some of its parts, as, for instance, in the penalty for noncompliance with the terms of the sale, as insisted in the argument.
Such a construction would render the provisions of the law referred to inoperative. For, except in cases where a specific performance may be compelled, the relations to each other of the parties to such a contract would not be changed by the law. Anterior to its passage the (71) party charged had the power to refuse compliance and run the hazards of an action for damages, and the construction now sought to be put upon it gives him that option — nothing more. It would be a palpable inconsistency to declare the contract void and of no effect, which is done by the statute, and still to hold the party responsible damages for its nonfulfillment.
In a case recently decided, Mizell v. Burnett,
The opinion of his Honor below, that the contract was not binding upon the defendant, in submission to which plaintiff suffered a nonsuit, was clearly correct.
PER CURIAM. Affirmed.
Cited: Love v. Atkinson,
