McKinnis v. Well Drillers, Inc.

5 N.C. App. 485 | N.C. Ct. App. | 1969

BrocK, J.

We note with interest that according to plaintiffs’ complaint, they paid a total of $10,250.00 for the property; according to plaintiffs’ uncontradicted evidence, they paid in excess of $11,300.00 for the property; and according to the judge’s findings of fact, they paid a total of $8,970.00 for the property. We are unable to reconcile these differences. However, it does not seem necessary to do so in order to dispose of this appeal.

It appears from plaintiffs’ evidence that there was a dispute between plaintiffs and defendant as to the balance due on the purchase price at the time the deed was executed in 1967. Plaintiffs rely wholly upon the purchase price being established at $8,275.00 as set out in the 1962 offer and acceptance. However, the 1962 offer and acceptance by its terms was to be performed on or before the expiration of two years from its effective date, which would have been in April or May of 1964. The record is absolutely silent as to an agreement to extend the 1962 contract, or as to the terms of any extension. Assuming arguendo, but specifically not deciding, that a •contract required by the statute of frauds to be in writing may be extended by implication from the conduct of the parties, it would appear from their conduct that plaintiffs and defendant intended to •consummate a purchase and sale of the property after the expiration of the 1962 contract. However, the record does not reveal any terms of extension, implied or otherwise. Therefore, upon this record, we hold that plaintiff has failed to show an extension of the 1962 contract.

At the time of the execution of the deed to plaintiffs in 1967, plaintiffs accepted defendant’s computation of the balance due, under whatever agreement it was calculated, and paid to defendant the balance as computed, and accepted the deed. This constituted a new and fully executed contract. Plaintiffs do not contend there was fraud, undue influence, or a mutual mistake; they contend only that they made a mistake. Indeed they do not seek rescission of the contract; they only seek to recover a sum of money that they paid by reason of what they allege to be a mistake on their part.

As stated above, this record does not support a finding that the 1962 contract was extended; therefore the only evidence upon which a calculation of correct purchase price can be made was the conduct of the parties in the execution of the deed in consideration of the payment of a balance due in the sum of $4,390.00.

We do not discuss the propriety of the nature of the action undertaken to be prosecuted by plaintiffs. Suffice it to say, that upon this record plaintiffs have failed to establish a cause of action for relief against defendant.

Defendant’s motion for nonsuit should have been allowed.

Reversed.

Campbell and MoRris, JJ., concur.