Bryan v. Cowles

• Court: North Carolina Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Bryan v. Cowles, 152 N.C. 767, 68 S.E. 205 (N.C. 1910)
• Decision Date: 27 May 1910
• Parties: BRYAN v. COWLES et al.

68 S.E. 205

152 N.C. 767

BRYAN v. COWLES et al.

Supreme Court of North Carolina

May 27, 1910

Appeal from Superior Court, Watauga County; Councill, Judge.

Action by W. L. Bryan against Chas. H. Cowles and another, executors of Calvin J. Cowles, deceased. From a judgment for plaintiff defendants appeal. Affirmed.

Evidence held to support a quantum meruit claim for services in a sale of land.

Plaintiff brought this action against C.J. Cowles, deceased defendants' testator, before his decease, and after his death the present defendants qualified as his executors and were made parties. Plaintiff in first cause of action sues for $10,950, which he alleges is due him under a paper writing, dated February 13, 1897, and hereinafter set out on account of the alleged sale of the defendants' testator's timber lands; and in a second cause of action he sues for the same amount, which he alleges is due him upon the quantum meruit on account of alleged sale of said lands. Defendants denied any and all liability for plaintiff's claim. On the trial the jury rendered the following verdict "In what sum, if any, are defendants indebted to the plaintiff? Answer: $5,000." Judgment on verdict for plaintiff, and defendants excepted and appealed.

Finley & Hendren, T. C. Bowie, and Manly & Hendren, for appellants.

L. D Lowe and T. A. Love, for appellee.

PER CURIAM.

We have carefully considered the record and exceptions noted, and are of opinion that there has been no reversible error committed to defendants' prejudice.

It appeared that in 1903, 1904, and 1905, the testator, Calvin J. Cowles, had conveyed large bodies of mountain land, to wit, over 7,300 acres, to certain purchasers at an average price of $4 per acre; the amount received therefor being $29,364.40, and plaintiff claimed that these sales were brought about as result of plaintiff's labor and efforts and under and by virtue of a special contract between plaintiff and defendant plaintiff was to have all the proceeds of said sale over and above $2.50 per acre net to the owner, C.J. Cowles; the amount of plaintiff's demand in this aspect of the case being something over $10,000. In case this claim is not established, plaintiff makes demand on a quantum meruit for services rendered in effecting said sales. The court submitted the claim to the jury in both aspects and on a single issue, and the jury, as stated, rendered a verdict in plaintiff's favor for $5,000, for which judgment was entered.

On consideration of the testimony, we concur with defendants in the position that the plaintiff has failed to establish his claim made on the special contract. According to plaintiff this phase of his demand was made to rest on a letter written by the testator to plaintiff, in reference to a sale of these lands, bearing date February 13, 1897, and in terms as follows: "Wilkesboro, N. C., February 13, 1897. W. L. Bryan, Esq.--Dear Sir: I am glad you contemplate a visit to Washington City to effect a sale of a large body of mountain land; and as I have property of that kind which I would like to find a market for, I authorize you to make sale of as much as six thousand acres, at not less than two and 50-100 dollars per acre, net; one and 25-100 dollars cash and one and 25-100 dollars on one, two and three years, bearing six per cent. interest, interest payable annually, and the deferred payments secured by mortgage on the land situated in Wilkes and Watauga counties and west of Lewis Creek Fork. I repeat the price per acre, which is to be two dollars and fifty cents, net. Of course, I give good titles; but to enable me to clear them of liens it may be necessary for the purchasers to advance money or to pay into the office a part of the above purchase money. Wishing you success, I am, respectfully, Calvin J. Cowles"--with evidence tending to show a sale after and in pursuance of authority contained in...