16 S.E. 16 | N.C. | 1892
The plaintiffs set forth as the basis of their action the following contract, viz.: "I this day agree to buy the Houghtaling *105 place from R. W. Lassiter, agent of Mrs. Mary L. Hargrove, (169) for twenty-three hundred and fifty dollars (contract agreed upon), and I am to have possession 1 January, 1892, and I obligate myself to carry out the contract on my part, and R. W. Lassiter also does upon the part of Hargrove, this 14 November, 1891." (Signed by J. W. Adcock and R. W. Lassiter.)
The plaintiffs allege that defendant executed it, and in his answer the latter says "that he did sign a paper-writing similar to that stated in the complaint, and that there was no consideration, implied or expressed, therein binding upon defendant." The defendant now contends that, by this evasive answer, he has put in issue the fact of the execution of the paper by him. We think not. Plaintiffs would derive little benefit from the privilege of filing sworn complaints if an issue of fact could be raised by an equivocal answer, or anything short of a direct denial. The defendant simply avers in effect that he did not execute a paper in the form of that set forth, but that he did sign one similar to it. Having admitted that he executed it by the failure to deny the allegations, it remains to determine how such admission affects the competency of the original paper as evidence of the contract where it has never been proven or registered. There is no direct denial that the paper which defendant admits was executed by him was in the identical language set forth, but the defense seems to have rested, so far as appears from the answer, upon the want of consideration, expressed or implied.
If the contract was admissible in evidence, the consideration, if there was one, might have been shown for the purpose of enforcing the agreement by extrinsic proof, though no consideration was mentioned, and there was nothing in its terms from which it could be inferred that a consideration had passed. Mizell v. Burnet,
The provision of the statute (The Code, sec. 1245), which (170) was construed in White v. Holley,
There being no defect apparent upon the face of the agreement that would invalidate it, and no denial of the allegation that it was executed by the parties whose names are signed to it, it was manifestly unnecessary to offer to prove its execution, even by the common law method. Avent v. Arrington,
(171) It was in evidence as an admission in the answer that the contract in ipsissimis verbis was executed by Adcock, and by R. W. Lassiter as agent of Mrs. Hargrove. The requirement of the Statute of Frauds is that the contract, or some memorandum or note thereof, should be signed by "the party to be charged therewith, or by some other person by him thereto lawfully authorized." The Code, sec. 1554. If there be a written memorial of so much of the contract as is binding on the party to be charged therewith, so expressed that its terms can be understood, and it be signed by one who is proved or admitted by the principal to have been authorized as agent to act for him, it is a sufficient compliance with the statute if the agent sign his own name instead of that of his principal by him. Washburn v. Washburn,
In the exercise of a regulated judicial discretion, the court unquestionably could adjudge, upon the coming in of the verdict, that the plaintiff recover the sum of $2,300, which was the contract price, less $50, the amount found as damage for waste in the destruction of buildings after the contract was entered into, and before the time appointed for the defendant to take possession, and that, unless the defendant *107 should perform his contract by the payment of said sum before a day certain, the land should be sold by commissioners, etc.
For the reasons given, we are of opinion that there is
NO ERROR.
Cited: Love v. Atkinson,
(172)