Bryant Timber Co. v. Wilson

• Decision Date: 20 October 1909
• Citation: 65 S.E. 932,151 N.C. 154
• Parties: BRYANT TIMBER CO. v. WILSON et al.
• Court: North Carolina Supreme Court

65 S.E. 932

151 N.C. 154

BRYANT TIMBER CO. v. WILSON et al.

Supreme Court of North Carolina

October 20, 1909

Appeal from Superior Court, Sampson County; W. R. Allen, Judge.

Action by the Bryant Timber Company against John E. Wilson and another for specific performance of a contract and for damages. Judgment for plaintiff for damages only, and plaintiff appeals. Reversed and remanded, with directions.

Though a vendor is unable to convey the title called for by the contract, the purchaser may elect to take what the vendor can give him, and hold him answerable for damages as to the rest.

In a suit for specific performance damages may be awarded when prayed for, though the principal relief asked for be denied.

These issues were submitted without objection:

"(1) Did the plaintiff within 30 days from the 12th day of April, 1907, notify the defendant John E. Wilson of its intention to purchase the timber referred to in the complaint? Answer: Yes.

"(2) If so, was the intention to purchase said timber coupled with the condition that the title was good? Answer: No.

"(3) Has the plaintiff been at all times ready, able, and willing to perform its contract on its part? Answer: Yes.

"(4) Has the defendant John E. Wilson refused to perform his contract on his part? Answer: Yes.

"(5) What damage, if any, is the plaintiff entitled to recover? Answer: $100."

Upon the rendition of the verdict the plaintiff tendered the judgment set out in the record decreeing a specific performance of the contract, which the court declined to sign, and plaintiff excepted. The court rendered judgment for damages only. Plaintiff excepted and appealed.

F. R. Cooper, Fowler & Crumpler, and C. M. Faircloth, for appellant.

Faison & Wright and Geo. E. Butler, for appellees.

BROWN J.

On the 12th of April, 1907, the defendants executed for a nominal consideration a contract in writing commonly called an option, whereby the defendants bound themselves to sell for a fixed price and for a definite period the timber growing and to be grown on certain lands described therein. Within the time required by the option the plaintiff gave due notice to defendants of its intention to purchase the timber and of its readiness to comply in all respects with the terms of purchase, thereby converting the written offer of the defendants to sell into a valid and binding contract by an unconditional acceptance of and compliance with its terms. It was the plaintiff's privilege to accept unconditionally and comply with the terms of the paper writing by paying the cash upon tender of the deed, and thus secure to itself the right to compel defendants to perform their contract. Weaver v. Burr, 31 W.Va. 736, 8 S.E. 743, 3 L. R. A. 94; Hardy v. Ward, 150 N.C. 391, 64 S.E. 171.

Upon the findings of the jury, is plaintiff entitled to have a decree compelling a specific performance of the contract, or is plaintiff remitted to an action for damages for its breach? If the defendants had withdrawn this option or offer to sell before its unconditional acceptance, there being no valuable consideration for it, they would have exercised an unquestioned right, for, without a valuable consideration to support it, the agreement would be a mere nudum pactum, and might have been withdrawn at any time. Until the proposal is accepted, there can be no contract, as there is nothing by which the proposer can be bound, and unless both are bound, so that an action can be maintained against the other for a breach, neither will be bound. But, after unconditional acceptance, there is a valuable consideration to support the contract. It then becomes mutual, and the voluntary proposal of one becomes the binding obligation of both. 1 Sugden, Vend. (8 Am. Ed.) 195, 196; Bishop on Cont. §§ 77, 79, 325; Story on Cont. 495; Benj. on Sales, § 41. Contracts of this character in respect to land, when unconditionally accepted, have been very generally enforced by courts of equity, and specific performance decreed, as will be seen by adverting to the numerous cases cited in the learned opinion of Mr. Justice Woods in Weaver v. Burr, supra. The defendant does not claim that there was any fraud, undue influence, oppression, or other wrongful act on the part of the plaintiff in obtaining said contract; neither does he allege any mistake in reference to same.

But it is insisted that the defendants cannot specifically perform the contract because they have conveyed the timber to the Tilghman Lumber Company. That would undoubtedly bar a decree for specific performance, although subjecting the defendants to damages, but for the fact that according to the record said company purchased, if at all, after the complaint was filed in this action, and although it is not a party to the action, it is bound to the same extent as if it were. Collingwood v. Brown, 106 N.C. 365, 10 S.E. 868; Spencer v. Credle, 102 N.C. 78, 8 S.E. 901; Todd v. Outlaw, 79 N.C. 235; Badger v. Daniel, 77 N.C. 251. Not only has a formal lis pendens been filed in this case, but the complaint contains a complete description of the property which is situated in the county where the action was commenced and is pending. This pleading refers to the registered option as well as contains a full statement of the facts. It is itself notice to the world of the plaintiff's claim. The Tilghman Company purchased after the filing of the complaint, and takes subject to any decree that may be made in this case. Morgan v. Bostic, 132 N.C. 751, 44 S.E. 639; Baird v. Baird, 62 N.C. 317; Dancy v. Duncan, 96 N.C. 111, 1 S.E. 455. It is further contended that the defendants cannot make a good title to the timber independent of the conveyance to the Tilghman Company, and for that reason...