31 S.E.2d 637 | N.C. | 1944
This is an action for specific performance. The defendants, on 23 September, 1943, gave the plaintiff and his heirs and assigns an option to purchase a certain tract of land described therein and owned by the defendants, for the sum of $6,000.00 One thousand dollars to apply on the purchase price was paid at the time of the execution and delivery of the option. Upon the payment of an additional sum of $5,000.00, on or before 9 October, 1943, the defendants bound themselves to deliver to J. N. Johnson, Jr., or his heirs and assigns, at his or their request, a good and sufficient deed with full covenants and warranty, for said land. The defendants met J. N. Johnson, Sr., father of the plaintiff, in the office of I. R. Williams, attorney at law, in the town of Dunn, on 9 October, 1943, for the purpose of complying with the terms of the option. It is alleged, and J. N. Johnson, Sr., testified, that the plaintiff, through him as his agent, was ready, able and willing to pay the balance of the purchase price on 9 October, 1943, and that he so advised the defendants. However, Mr. Williams, who had been employed by J. N. Johnson, Sr., to investigate the title to the property, informed the defendants that there were certain defects in the title and it would require several days to clear them up. It was pointed out that a certain dower interest was outstanding and it would be necessary to obtain a deed releasing this dower interest, and further that no final judgment had been entered in a certain special proceedings which also affected the title. Whereupon, Mr. Williams suggested that the matter be continued for a few days to give him time to clear the title. J. N. Johnson, Sr., suggested that it be continued until 15 October, 1943, and that they meet in the town of Benson on that date. The testimony for the plaintiff is to the effect that Mr. Noles agreed to the extension of time in order that he might give a good deed, and agreed to meet Messrs. Johnson and Williams in Benson, 15 October, 1943, at 3:00 p.m., to close the transaction; that he stated he did not want to give a bad deed and requested Mr. Williams "to clear up the title for him as he knew more about it than anyone else and for him to go ahead." The defendants do not deny the defects in the title, nor the request for additional time in which to cure them, but they do deny they verbally extended the option to 15 October, 1943. However, at the time and place suggested for the meeting on 15 October, 1943, Mr. Noles appeared and stated "I have decided to back out; I will not trade." Whereupon, I. R. Williams tendered in cash to *544 defendants the balance of the purchase price, and demanded deed to J. N. Johnson, Sr., and his wife Vara Wood Johnson. The defendants declined to accept the balance of the purchase money and refused to execute a deed for the land.
Plaintiff alleges and testified that after obtaining the original option, his father, J. N. Johnson, Sr., was his agent and was acting for him in the tender of the balance of the purchase price and in demanding a deed to the premises.
Issues were submitted to and answered by the jury, as follows:
"1. Did the defendants execute and deliver to the plaintiff the option in writing as described in the complaint? Answer: Yes.
"2. Was the plaintiff ready, able and willing to pay the balance of $5,000.00 and take said deed according to the terms and conditions of said option on 9 October, 1943, Answer: Yes.
"3. Were the defendants able, ready and willing to comply with the terms of said option and deliver a good and sufficient warranty deed with full covenants and warranty on or before 9 October, 1943, according to the terms set out in the option? Answer: No.
"4. Did the defendants consent and agree with the plaintiff to extend the time for the performance of said contract from 9 October, 1943, to 15 October, 1943, in order that certain defects in the defendants' title to said lands might be corrected, as alleged in the complaint? Answer: Yes.
"5. Did the plaintiff on 15 October, 1943, tender to the defendants the payment of $5,000.00 and demand deed for the land in question? Answer: Yes.
"6. Did the defendants violate the terms of said option and refuse to deliver to the plaintiff a deed conveying said lands according to the terms of their contract as alleged in the complaint? Answer: Yes."
Accordingly, a decree for specific performance was entered, and from which the defendants appeal to the Supreme Court, assigning errors. The first and second assignments of error are directed to the refusal of his Honor to allow the defendants' motion for judgment of nonsuit, made at the close of plaintiff's evidence and renewed at the close of all the evidence.
The defendants contend that the option was a unilateral contract, and in order for the plaintiff to avail himself of the benefits thereof he was required to comply unconditionally with the terms of the option. Therefore, *545
they insist that it was not enough for the plaintiff to be ready, able and willing to pay the balance of $5,000.00 and take a deed, according to the terms of the option, on 9 October, 1943, but the actual tender and demand for a deed was the only means of acceptance that could bind the defendants, and, in support of their position, they are relying on Trogden v. Williams,
An extension of the time for tender of the balance of the purchase price, and for the acceptance of the deed by plaintiff, was given by the defendants, according to the plaintiff's allegations and testimony, not for the benefit or accommodation of the plaintiff, but in order that the defendants might give a good deed with full covenants and warranty, which they could not do on 9 October, 1943. Even so, the defendants contend, if these allegations are conceded to be true, the extension was in parol, without consideration, and void, citing Cummins v. Beaver,
The principle laid down in Alston v. Connell,
Other assignments of error are directed to the insufficiency of the issues submitted by the Court, to the charge bearing on the questions of tender on 9 October, 1943, and the variance of the terms of the option by J. N. Johnson, Sr., in demanding a deed not to J. N. Johnson, Jr., *547
the plaintiff, but a deed to himself and wife. We think the issues submitted to the jury cover all the pertinent questions raised by the pleadings which are necessary to a proper adjudication of this controversy.Bailey v. Hassell,
We need not consider whether the request for a deed to J. N. Johnson, Sr., and his wife Vara Wood Johnson, was a variance of the terms of the option or not, since the evidence discloses that before the tender was made on 15 October, 1943, and a deed requested, the defendant I. B. Noles announced his refusal to comply with the terms of the option. Thereafter, the tender of the balance of the purchase price and a demand for the deed was unnecessary. It is enough that plaintiff is ready, able and willing and offers to perform in his pleading. Bateman v. Hopkins,
A careful consideration of all the exceptions and assignments of error, leads us to the conclusion that in the trial below there was no prejudicial error.
No error.