57 N.C. 77 | N.C. | 1858
The bill alleged a parol contract, which was, that the defendant should convey to the plaintiff, Murdock, a certain house and lot, in the town of Hillsboro', which is described in the bill according to certain metes and bounds, but the only memorandum, or written evidence of the contract, relied on, was the following:
"Received of A. C. Murdock one hundred dollars in tinware, and one carryall at seventy-five dollars, in part payment of one house and lot, in the town of Hillsborough, purchased *78 of me, by him, for the sum of three hundred and fifty dollars." Signed by the defendant.
The bill alleged further, that $175 had been paid by the plaintiff, as stated on the receipt, and that the plaintiff had requested the defendant to convey to him the premises, but that he had refused to do so. The plaintiff Bain claimed, as the assignee of Murdock.
The prayer of the bill was for a conveyance and for general relief.
The answer of the defendant denied the facts, as set forth in the bill. The main question was, whether the writing set forth, was a sufficient note or memorandum of the agreement, under the statute of frauds, or whether parol evidence could be introduced to supply the omissions of the writing in setting out the contract.
The cause was set down to be heard on the bill, answer, former order, proofs and exhibits. It is the misfortune of the plaintiffs that the contract was not reduced to writing, at the time it was entered into. The defendant denies the contract as alleged in the bill, and the plaintiff is forced to rely on a recital set out in a receipt for a part of the purchase-money. We think the evidence is insufficient, because the receipt contains no description of the house and lot, by which it can be identified.
This conclusion is fully supported by the authorities, Mallory v.Mallory, Busb. Eq. 80; Plummer v. Owens, ib. 254; Allen v. Chambers, 4 Ire. Eq. 125.
The distinction is this: where a sufficient description is given, parol evidence must be resorted to, in order to fit the description to the thing; but where an insufficient description is given, or where there is no description, (as in our case) such evidence is inadmissible. We deem it unnecessary to enter into a discussion of the subject; Deaf and DumbInstitute v. Norwood, Busb. Eq. 65. *79
This Court cannot assume jurisdiction to decree repayment of the $175; the contract being void, the money can be recovered at law, in an action for money had and received; Ellis v. Ellis, 1 Dev. Eq. 398; and there is no peculiar equitable ingredient presented by this case.
PER CURIAM, The bill must be dismissed.
