Bros v. Kennedy

• Decision Date: 21 December 1927
• Docket Number: (No. 291.)
• Citation: 140 S.E. 721
• Court: North Carolina Supreme Court
• Parties: KEITH BROS. v. KENNEDY.

140 S.E. 721

(194 N. C. 784)

KEITH BROS.

v.KENNEDY.

(No. 291.)

Supreme Court of North Carolina.

Dec. 21, 1927.

Appeal from Superior Court, Brunswick County; Bond, Judge.

Action by Keith Bros. against Hoyt Kennedy. Judgment for defendant, and plaintiffs appeal. No error.

This is a civil action brought by plaintiffs against defendant, in which a claim and delivery was issued to recover a Dodge touring car valued at $750, and damages.

The plaintiffs allege:

"That on or about the 12th (18th) day of January, 1926, the defendant fraudulently induced these plaintiffs to permit him to have temporary custody of a certain Dodge touring car, the property of these plaintiffs, for the purpose of showing the same to a party who desired to purchase the said car, the said defendant agreeing to bring the said car back to these plaintiffs in a very short time, but, despite the demands of these plaintiffs, the said defendant has utterly and completely failed to return the said car to these plaintiffs after possession of the same has been demanded by the plaintiffs, and the defendant therefore is wrongfully retaining the same."

Defendant denies the allegations of plaintiffs, and, as a further defense and cross-action, complains, in part:

"That a few days prior to the 18th of January, 1926, the plaintiffs and the defendant began negotiations relative to the plaintiffs buying certain land belonging to the defendant H. O. Peterson, the plaintiffs being made aware of the ownership of said lands, which said lands were in Pender county; and, as a part of the purchase price, the defendants were to receive the said automobile set out and described in plaintiffs' complaint. That, in consequence of said negotiations and previous agreement, and in consummation thereon, on January 18, 1926, the defendant Hoyt Kennedy and his wife, and H. O. Peterson and his wife, executed to the plaintiffs a good and sufficient deed conveying said lands and premises referred to in paragraph 1 hereof to the plaintiffs, and that on January 19, 1926, this defendant delivered said deed to the plaintiffs at their place of business in the city of Wilmington, N. C, which said deed is filed with the court in the above-entitled cause. That, at the time the defendant delivered said deed to the plaintiffs, the plaintiffs delivered to the defendant the said automobile, which said automobile was the full amount of the purchase price of said lands, except the sum of $250, which said sum of $250 was to be paid to the defendant upon the approval of the title to said lands by the plaintiffs' attorneys. * * * That the title to said lands was good. * * * That, upon the delivery of said deed, as aforesaid, the negotiations between the plaintiffs and the defendant became an executed contract, it being understood and agreed at said time that, in the event the said attorney should find any judgments or mortgages or taxes against said land, the plaintiff could pay and deduct such amount from the balance of the purchase price of $250, * * * and that this defendant, and his co-defendant, are now, and have been at all times, able, ready, and willing to carry out their part of said contract, as they did do when they delivered said deed. That H. O. Peterson is a necessary party to this action, and this defendant asks that the said H. O. Peterson be made a party defendant. Wherefore the defendant prays that the plaintiffs recover nothing by their suit, and that the defendant recover of the plaintiffs the sum of $250, the additional amount of the purchase price unpaid; that he recover of the plaintiffs the further sum of $750, the value of said automobile, together with damages."

The allegations of the complaint in the further defense and cross-action were denied by plaintiffs, and the plea of the statute of frauds set up as a defense.

The issues submitted to the jury, and their answers thereto, were as follows:

"(1) Did the parties agree to the trade for said land, as alleged in cross-action? Answer: Yes.

"(2) Did the defendant Kennedy et al., execute and deliver a deed in fee simple to Keith Bros, for said land, which plaintiffs accepted? Answer: Yes.

"(3) Are plaintiffs, Keith Bros., the owners, and entitled to the possession of the Dodge car referred to in the complaint? Answer: No.

"(4) What was the value of the said car at the time of the claim and delivery seizure? Answer: $550.

"(5) What sum,...