187 S.E. 568 | N.C. | 1936
This is an action to have the defendant Farmville-Woodward Lumber Company declared a trustee for the plaintiff of certain timber conveyed by deed to said lumber company by the defendants W. F. Barber and wife. The plaintiff alleges, inter alia, "that under the aforesaid agreement heretofore had by and between the defendant Farmville-Woodward Lumber Company and the plaintiff, the said defendant Farmville-Woodward Lumber Company now holds the title to the said tract of timber under the aforesaid deed executed by W. F. Barber and wife, and recorded in Book 0-3, page 286, in the office of the register of deeds of Martin County, in trust for the plaintiff, and the plaintiff is entitled to the conveyance of said tract of timber by the said defendants."
The defendant Farmville-Woodward Lumber Company filed answer and denied the existence of any agreement between it and the plaintiff whereby it could be construed that it held the timber deeded to it by the defendants Barber and wife in trust for the plaintiff.
The defendants W. F. Barber and wife answered and filed an interplea, in which they alleged that the option to the plaintiff and the deed to the defendant Farmville-Woodward Lumber Company executed by them were obtained by fraud, and asked that both be declared void. *424
At the close of the evidence the plaintiff's motion that the interplea of the defendants Barber and wife be nonsuited was sustained, and their alleged cause of action was dismissed. The defendants Barber and wife excepted and appealed.
The plaintiff offered evidence tending to show that he procured a written option on the timber involved from the defendants Barber and wife upon the agreed consideration of $2,500, and that he then entered into an oral agreement with the defendant Farmville-Woodward Lumber Company to finance the purchase of said timber, that the terms of this agreement were that the lumber company would pay the $2,500 to Barber and wife for the plaintiff, and would pay the plaintiff $11.00 per thousand feet for the lumber delivered at its mill in Williamston, that $3.00 of this $11.00 was to be withheld to apply on the repayment of the advancement by the lumber company to Barber and wife until the entire $2,500 was repaid, and $8.00 paid to the plaintiff to defray operating expenses, and, in addition, the defendant lumber company was to furnish the plaintiff certain logging equipment; and further tending to show that the plaintiff left his written option from the Barbers with the lumber company and that the lumber company used this option and procured a deed to itself from Barber and wife for the timber involved.
The defendant Farmville-Woodward Lumber Company offered evidence tending to show that the option was obtained by the plaintiff for its benefit, and that it paid the purchase price of $2,500 for the timber and took title to the timber, and that the only agreement existing between it and the plaintiff was that the plaintiff could have the job of logging the timber if his bid met the bid of competitive bidders.
The case was tried upon the following issues:
1. Did the defendants W. F. Barber and wife execute the contract to convey the timbers, rights, privileges, and easements to the plaintiff, as alleged in the complaint?
2. Did the plaintiff tender to the defendants W. F. Barber and wife the purchase price of $2,500 and demand the execution and delivery of deed for the said timbers, rights, privileges, and easements to the plaintiff, within sixty days provided for in the contract, as alleged in the complaint?
3. Did the defendant lumber company agree to advance the purchase price of $2,500 to pay for the said timbers, rights, privileges, and easements for the plaintiff, and to take and hold the title thereto for the use and benefit of the plaintiff until the said purchase price was repaid to the defendant lumber company by the plaintiff, as alleged in the complaint?
4. Does the defendant lumber company hold the title to the said timbers, rights, privileges, and easements as trustee for the use and benefit of said plaintiff, as alleged in the complaint? *425
The first two issues were answered "Yes" by consent, and it was agreed that in the event the third issue was answered by the jury in the affirmative that the court should answer the fourth issue likewise, and if the jury should answer the third issue in the negative that the court should answer the fourth issue in a similar manner. The third issue, the only issue submitted to the jury, was answered "Yes," and the fourth issue, in accord with the agreement, was, by the court, answered "Yes."
Judgment was entered declaring that the Farmville-Woodward Lumber Company held title to the timber involved for the plaintiff upon conditions in accord with the allegations of the complaint. From this judgment the defendant Farmville-Woodward Lumber Company appealed.
The Farmville-Woodward Lumber Company assigned as error the following from his Honor's charge, to wit: "The burden of that (third) issue is upon the plaintiff Minton and before you can answer that issue `Yes' the plaintiff Minton must offer evidence which will satisfy you by its greater weight that this company did agree to buy this timber for Minton and to hold it for him and give him this contract for logging at $11.00, and $3.00 of that to be paid on the purchase price and $8.00 for operating expenses, and the balance of the timber, if any left over, to be deeded back to Minton. . . . If you are satisfied from the evidence, and by the greater weight, that that was the contract between Mr. Minton and the lumber company, then it would be your duty to answer that issue `Yes.' If you are not so satisfied, you will answer it `No.'"
This assignment of error must be sustained, since the degree of proof required of the plaintiff to sustain the third issue was clear, strong, and convincing, and not the mere preponderance. From the facts as they appear from the evidence the defendant Farmville-Woodward Lumber Company has the legal title to the timber in controversy, formally conveyed to it by the defendants W. F. Barber and wife, and the purpose of this action is to engraft a trust upon this title in favor of the plaintiff. The case, in our opinion, comes within the principle enunciated in Ely v. Early,
We cannot agree with the position taken in the appellee's brief that this was an action to enforce a contract, and that, therefore, the degree of proof required was a mere preponderance. That the case was not tried upon that theory below is evident from the issues submitted, more especially the fourth issue. The judgment, which declares that the defendant Farmville-Woodward Lumber Company holds title to the timber involved for the benefit of the plaintiff upon certain terms and conditions, further indicates that the case was tried upon the theory that it was an action to engraft upon the deed from Barber and wife to the Farmville-Woodward Lumber Company, absolute on its face, a parol trust in favor of the plaintiff. The case must be considered on appeal in the light of the theory upon which it was tried below. Potts v. Ins. Co.,
The motion for judgment as of nonsuit upon the allegations of the interplea of the defendants W. F. Barber and wife was properly sustained, since there was no evidence that these defendants were defrauded.
Upon appeal of defendant Farmville-Woodward Lumber Company,
New trial.
Upon appeal of defendants Barber and wife,
Affirmed.