Byrd v. Freeman

• Decision Date: 10 June 1960
• Docket Number: No. 603,603
• Citation: 114 S.E.2d 715,252 N.C. 724
• Parties: Giles BYRD and Wife, Eloise W. Byrd, v. Lloyd FREEMAN and wife, Viola Freeman; J. K. Young and wife, Letcy Young; and W. J. Barefoot and wife, Frances W. Barefoot.
• Court: North Carolina Supreme Court

Page 715

114 S.E.2d 715

252 N.C. 724

Giles BYRD and Wife, Eloise W. Byrd, v. Lloyd FREEMAN and wife, Viola Freeman; J. K. Young and wife Letcy Young; and W. J. Barefoot and wife, Frances W. Barefoot.

No. 603

Supreme Court of North Carolina.

June 10, 1960

Powell, Lee & Lee, Whiteville, for plaintiffs, appellees.

Proctor & Proctor and Powell & Powell, Whiteville, for defendants, appellants.

BOBBITT, Justice.

Defendants present one question: Did the court err in refusing to grant the motion for judgment of nonsuit made by defendants at the close of all the evidence?

All grounds asserted by defendants in support of their contention that their said motion for judgment of nonsuit should have been granted relate solely to matters involved in the first issue. Hence, discussion of evidence relevant only to the second and third issues is unnecessary.

'A contract, whereby one party, for a valuable consideration, grants to another an option on terms, conditions, and for a time, specified, to call for the doing of a certain act, constitutes an irrevocable offer which, on acceptance in accordance with its terms, gives rise to a contract that may be specifically enforced.' 81 C.J.S. Specific Performance § 47; 49 Am.Jur., Specific Performance § 117; Williston on Contracts, Revised Edition, Vol. 5, § 1441; Bryant Timber Co. v. Wilson, 151 N.C. 154, 65 S.E. 932; Samonds v. Cloninger, 189 N.C. 610, 127 S.E. 706; First-Citizens Bank & Trust Co. v. Frazelle, 226 N.C. 724, 40 S.E.2d 367.

Uncontradicted evidence tends to show these facts: On the morning of September 26, 1958, Giles Byrd and Lloyd Freeman went upon the Freeman lands and identified the physical boundaries of the tract of ten acres, more or less, to be retained by the Freemans. The lines of this tract were to be surveyed in order to get the calls for a description by course and distance. Thereafter, the contract of September 26, 1958, was drafted by R. H. Burns, Jr., an attorney, and executed by defendants Freeman in Burns' office.

After execution of the contract, Bland, a registered surveyor, made a map of the tract to be retained by the Freemans in accordance with the physical boundaries as pointed out to him by Byrd. The tract shown on the Bland map contains 9.2 acres.

Prior to and on October 11, 1958, Freeman contended the Bland map was not in accord with the physical boundaries upon which he and Byrd had agreed; that the tract to be retained by the Freemans, if surveyed according to the agreed physical boundaries, contained 11.5 acres; and that the tract of 11.5 acres is shown on a map made by Schnibben, registered surveyor.

The difference between the two tracts is that the Schnibben map shows a triangular area south of the south line of the 9.2 acre tract shown on the Bland map. (Note: The evidence tends to show this triangular area of 2.3 acres was 'woodsland' and was not relevant in determining the division of the crop allotments.)

The charge of the trial court was not included in the record on appeal. Hence, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. Hatcher v. Clayton, 242 N.C. 450, 88 S.E.2d 104.

A provision in the judgment indicates the jury found the 9.2-acre tract shown on the Bland map was in accordance with the physical boundaries upon which Byrd and Freeman had agreed. Moreover, there was evidence to the effect that, on the occasion of their tender on October 11, 1958, plaintiffs agreed to accept 'the deed for the same lands that were later deeded to Barefoot,' that is, a deed providing that the tract of 11.5 acres shown on the Schnibben map was excepted from the conveyance.

On this phase of the case, there was ample evidence for submission to the jury in connection with the first issue on these propositions: (1) Was the 9.2-acre tract surveyed in accordance with the physical boundaries agreed upon by plaintiffs and defendants Freeman prior to the execution of the contract of September 26, 1958? (2) If not, did plaintiffs, on the occasion of their tender, agree to accept a deed excepting from the conveyance the 11.5 acres shown on the Schnibben map? It appears that the jury resolved one or both of these questions against defendants.

As to crop allotments, uncontradicted evidence tends to show: Under regulations issued by the Secretary of Agriculture pursuant to the Agricultural Adjustment Act of 1938, as amended, U.S.C.A., Title 7, § 1281 et seq., referred to hereafter as the A.S.S. (Agricultural Stabilization Service) regulations, the division of crop allotments is made on the basis of cleared land. The Freeman lands included a total of nineteen acres of cleared land. The lands to be conveyed by defendants Freeman to plaintiffs included thirteen acres of cleared land and the land to be retained by defendants Freeman included six acres of cleared land. Each farm, after division, would have an allotment of one acre for peanuts. There were no corn allotments after 1958. The entire tobacco allotment was 3.1 acres and the entire cotton allotment was 1.7 acres. Upon division, the thirteen acres would have a tobacco allotment of 2.12 acres and a cotton allotment of 1.2 acres and the six acres would have a tobacco allotment of 98 acre and a cotton allotment of .5 acre. Thus, under A.S.S. regulations, plaintiffs would acquire a tobacco allotment of 2.12 acres instead of 3 acres and a cotton allotment of 1.2 acres...