14 S.E. 966 | N.C. | 1892
WILMINGTON, N.C. 18 May, 1891.
MR. JAS. H. LOUGHRAN, Asheville, N.C.
DEAR SIR: I must beg your pardon for the delay in replying to your letter of the 8th inst. My bookkeeper has been sick, one of the clerks off on a bridal tour, and one other clerk away on his summer vacation. My hands have been full. I will make you this proposition: $7,500 for the property; payments, $2,000 cash, $1,500 in two years, $1,000 in three years, $1,500 in four years, and $1,500 in five years; interest, 8 per cent, payable semiannually. The above amount is what I think the place is worth.
I have your check for $50 in full for rent to the 15th inst. I thank you. Very truly,
CLAYTON GILES.
Cash ........................................................$2,000 2 years ..................................................... 1,500 3 years ..................................................... 1,000 4 years ..................................................... 1,500 5 years ..................................................... 1,500 ______ $7,500
Will you kindly reply at your earliest opportunity.
And that plaintiff received the above letter, or contract, on 21 May, 1891, and replied, accepting the offer of defendant contained in said letter, by telegram, in words and figures as follows:
(425)
21 May, 1891.
To CLAYTON GILES, Wilmington, N.C.
I accept your proposition. Send deed and notes to D.C. Waddell as soon as possible. JAMES H. LOUGHRAN.
The complaint further states that plaintiff was ready, willing, and able to comply with the above agreement, and defendant refused, after demand.
The plaintiff declares in terms upon both a verbal and a written contract, as it was competent for him to do. Harris v. Sneeden,
"A verbal contract for the sale of land, tenements or hereditaments, or any interest in or concerning them (said the Court, in Thigpen v. Station,
As it does not appear from the complaint that the defendant is not still able to perform the verbal agreement, we do not think that the *301 Court should treat the demurrer as an election to repudiate the contract. In the absence of an allegation that the defendant had, before suit brought, placed himself in such condition that he could not perform the agreement, there is a failure to disclose all of the facts necessary to constitute a good defense, and even in states where the demurrer has been sustained in causes of this character, it was originally so held, upon the ground that, admitting the allegations of the complaint to be true, there would be no possibility of recovery upon them in any contingency. The earliest of the Massachusetts cases that we can find, in which such a demurrer was sustained (Walker v. Locke, 5 Cush., 90) was one where the defendant, by conveying the premises, as in Young v. Young, supra, had rendered it impossible to abide by his verbal promise, and where the fact that he had so aliened the land appeared upon the face of the bill. It is true that in some subsequent cases that Court sustained a demurrer where the same reason did not exist, and the rule was generally adopted in the courts of equity in this country that a defendant might demur where it appeared affirmatively in the bill that the contract which the plaintiff was seeking to enforce was a verbal agreement to convey land. But no such doctrine was ever announced in North Carolina as obtaining in courts of equity, and we think that the rule which has been recognized here is much more just and reasonable. Until it appears affirmatively that the way is not open for the person to be charged to admit and submit to the parol agreement, there is a possibility (429) of enforcing the contract. The statute was enacted to prevent the enforcement of pretended contracts. Where there is a real agreement, there is no sufficient reason why the party against whom the court is asked to enforce it should not be forced to a discovery of the truth or to rest his defense solely upon the statute. We prefer to adhere to our own rulings. Though, generally, we have followed the courts of equity in formulating rules of pleading under the new system, there are exceptions to the general rule.
In taking the view of the subject that we have announced, we must not be understood as holding that the plaintiff has not in fact sufficiently alleged that there was a contract in writing. It might prove very interesting to discuss the question whether the telegraphic operator at Asheville was constituted the defendant's agent, as if he had been clerk at an auction sale, and whether the response in defendant's letter to that of plaintiff would make the letter admissible to show a description set forth in it. The rule has been generally adopted in other courts that where the allegation is that a defendant contracted to convey, it will be presumed that the allegation referred to a contract in writing. We *302 merely mention this question, however, to exclude an improper conclusion, and will forbear further discussion of it.
The judgment of the court below is
Affirmed.
Cited: Lowe v. Harris,
(430)