Bateman v. Hopkins

• Citation: 73 S.E. 133,157 N.C. 470
• Parties: BATEMAN v. HOPKINS.
• Decision Date: 20 December 1911
• Court: United States State Supreme Court of North Carolina

73 S.E. 133

157 N.C. 470

BATEMAN v. HOPKINS.

Supreme Court of North Carolina

December 20, 1911

Appeal from Superior Court, Tyrrell County; O. H. Allen, Judge.

Action by W. E. Bateman against E. B. Hopkins. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Where stipulations in a contract for the sale and purchase of real estate are mutual and dependent, an actual tender of a conveyance by the vendor is necessary to put the purchaser in default and to cut off his right to treat the contract as still subsisting, and, where time is of the essence, the tender must be made on the day named.

This action was brought to compel the specific performance of a contract to convey land, by the vendee against the vendor. The memorandum is as follows: "Received of W. E. Bateman five dollars to confirm the bargain on the purchase of the farm on which I now live. This January 8, 1910. [Signed] E B. Hopkins."

The defendant alleged that the memorandum was as follows "Received of W. E. Bateman $5.00 to confirm the bargain on the purchase of the farm on which I now live, and if I fail to make the said W. E. Bateman a deed, then I will pay his $5.00 back and $5.00 more, making in all $10.00."

The jury returned the following verdict: "(1) Did the defendant execute the contract set out in the complaint? Answer: Yes. (2) Did the plaintiff, Bateman, tender the defendant, Hopkins, the $1,000 part purchase money of the lands described in the complaint? Answer: No. (3) If not, was it waived by defendant, Hopkins? Answer: Yes. (4) Was the plaintiff, Bateman, ready, willing, and able to pay off the indebtedness of said Hopkins to J. C. Meekins, Sr., and to pay the defendant, Hopkins, in addition, the $1,000 balance of the purchase money? Answer: Yes. (5) What is the yearly rental value of the same? Answer: $150." The court after refusing a new trial, rendered judgment upon the verdict for the plaintiff, and defendant appealed.

M Majette and E. F. Aydlett, for appellant.

W. M. Bond, I. M. Meekins, and M. H. Tillitt, for appellee.

WALKER J.

It will be seen that, upon the issue as to the contents of the memorandum, the jury decided in favor of the plaintiff, and we must therefore consider the case with reference to the contract as it is alleged in the complaint.

We do not entertain any doubt as to the sufficiency of the memorandum under the statute of frauds, as it has been construed in our decisions. "Every deed of conveyance (or contract) must set forth a subject-matter, either certain in itself, or capable of being reduced to a certainty, by a recurrence to something extrinsic to which it refers." Gaston, J., in Massey v. Belisle, 24 N.C. 170. In Carson v. Ray, 52 N.C. 609, 78 Am. Dec. 267, the deed described the land as, "My house and lot in the town of Jefferson, Ashe county, N. C."; and the court, with reference to this description, said: "A house and lot, or one house and lot in a particular town, would not do, because too indefinite on the face of the instrument itself. See Plummer v. Owens, 45 N.C. 254; Murdock v. Anderson, 57 N.C. 77. But 'my house and lot' imports a particular house and lot, rendered certain by the description that it is one which belongs to me, and upon the face of the instrument is quite as definite as if it had been described as the house and lot in which I now live, which is undoubtedly good." See Blow v. Vaughan, 105 N.C. 199, 10 S.E. 891; Farmer v. Batts, 83 N.C. 387. To the same effect is the language of the court in Manufacturing Co. v. Hendricks, 106 N.C. 485, 11 S.E. 568: "No decree, however, for specific performance can be granted the defendant unless 'his land where he now lives' (the descriptive words of the receipt) is fully identified by competent testimony. These words are clearly susceptible of being applied to a particular well-defined tract of land--id certum est, quod certum reddi potest--and, if the defendant can supply the requisite proof, he will be entitled to relief."

It is further objected that the consideration is not expressed in the memorandum; but it is well settled that this is not required, and it may be shown by oral evidence. Miller v. Irvine, 18 N.C. 103; Thornburg v. Masten, 88 N.C. 293; Manufacturing Co. v. Hendricks, supra; Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104, 107 Am. St. Rep. 474. In Gordon v. Collett, 102 N.C. 532, 9 S.E. 486, a simple receipt of a sum of money, in part payment of a certain tract of land described in the paper, was held to be sufficient. There was evidence in the case, identifying the land and fixing the amount of the consideration. This action is by the vendee against the vendor. It was not necessary, therefore, for the memorandum to set forth the obligation of the vendee to pay the price. There is a difference, as we have often said, between the consideration necessary to support a contract, which was required at common law before the statute of frauds was adopted and is still required, and the promise of the vendee to pay the purchase money, which must be stated in the writing in order to bind him, if he is sued and is, therefore, the party to be charged. Hall v. Misenheimer, supra; Brown v. Hobbs, 154 N.C. 544, 70 S.E. 906. "Under the statute of frauds, a contract, in writing, to sell land, signed by the vendor, is good against him, although the correlative obligation of the buyer to pay the price is not in writing and cannot be enforced against him." Mizell v. Burnett, 49 N.C. 249, 69 Am. Dec. 744. See, also, Improvement Co. v. Guthrie, 116 N.C. 382, 21 S.E. 952. As the vendee is suing in this case, he agrees to perform the contract, and therefore waives the benefit of the statute, or rather is not seeking to rely upon it.

The overshadowing question in this case is whether the plaintiff has made a proper tender or been relieved therefrom by the conduct of the defendant, and, if so relieved, whether he has been ready, willing, and able to perform his part of the contract. As to the first question, the jury have found, upon sufficient evidence, as we think, that the defendant waived a tender of the purchase price by the plaintiff, not only by his conduct, but by denying the contract and refusing to comply with its terms. The denial and refusal continued to the very time of the trial. The court did not order a sale of the land, but required the defendant to execute a deed for the same and deposit it with the clerk of the court, and the latter to deliver it to the plaintiff upon his paying into court the money due under the contract, and otherwise complying fully with its terms and conditions on his part. Where the vendor has repudiated the agreement, thus making it appear that, if the tender were made, its acceptance would be refused, tender or offer of payment by the vendee before suit is unnecessary. Equity does not require a useless formality. 36 Cyc. 705. In general the rules of equity concerning the necessity of an actual tender are not so stringent as those of the law.

The following are special rules upon the subject, which seem to be settled: "(1) An actual tender by the plaintiff is unnecessary when, from the acts of the defendant or from the situation of the property, it would be wholly nugatory. Thus if defendant has openly refused to perform, the plaintiff need not make a tender or demand; it is enough that he is ready and willing and offers to perform in his pleading. Hunter v. Daniel, 4 Hare, 420, 433; Mattocks v. Young, 66 Me. 459, 467; Crary v. Smith, 2 N. Y. 60, 65; Kerr v. Purdy, 50 Barb. [N. Y.] 24; Maxwell v. Pittenger, 3 N. J. Eq. 156; White v. Dobson, 58 Va. 262; Brock v. Hidy, 13 Ohio St. 306, 310; Brown v. Eaton, 21 Minn. 409, 411; Gill v. Newell, 13 Minn. 462, 472 [Gil. 430]; Deichmann v. Deichmann, 49 Mo. 107; Gray v. Dougherty, 25 Cal. 266, 280, 281. (2) Where the stipulations are mutual and dependent--that is, where the deed is to be delivered upon the payment of the price--an actual tender and demand by one party is necessary to put the other in default, and to cut off his right to treat the contract as still subsisting. Hubbell v. Von Schoening, 49 N.Y. 326, 331; Leaird v. Smith, 44 N.Y. 618; Van Campen v. Knight, 63 Barb. [N. Y.] 205; Irvin v. Bleakley, 67 Pa. 24, 28; Crabtree v. Levings, 53 Ill. 526." Where time is essential or of the essence of the contract, the tender and demand must be made on the day named, and a fortiori where it is stipulated that if tender and demand are not made by one of the parties at the time specified, the other party may treat the contract as at an end. When time is not essential, another rule has been adopted in a group of decisions, which is said to be more in accordance with principles of equity, viz., that in such contracts an actual tender or demand by the plaintiff prior to the suit is not essential. It is enough that he was ready and willing, and offered, at the time specified, and even that he is ready and willing at the time of bringing the suit, unless his rights have been lost by laches, and that he offers to perform in his pleading. The plaintiff's performance will be provided for in the decree, and his previous neglect will only affect his right to costs. The foregoing principles are considered in 4 Pomeroy's Eq. Jur. (3d Ed.) § 1407, and note, at page 2776, where a full citation of the authorities will be found. See, also, Pomeroy on Contracts, §§ 360-364. The general rule is thus stated by Pomeroy, in section 1407: "The doctrine is fundamental that either of the parties seeking a specific performance against the other must show, as a condition precedent to his obtaining the remedy, that he has done or offered to do, or is then ready and willing to do, all the essential and material acts required of him by the agreement at the time of...