Capps v. Holt

• Decision Date: 31 December 1859
• Citation: 58 N.C. 153,5 Jones 153
• Court: North Carolina Supreme Court
• Parties: HENRY CAPPS v. WILLIAM D. HOLT.

5 Jones Eq. 153

58 N.C. 153

HENRY CAPPS

v.WILLIAM D. HOLT.

Supreme Court of North Carolina.

December Term, 1859.

Receipts for money paid upon a verbal contract, and which are relied on as evidence of the contract, form no exception to the rule that a writing, containing a patent ambiguity, cannot be helped by a parol evidence.

Where the description of the land, in a memorandum of contract, is vague and indefinite, Equity will not decree a specific performance.

Where a bill, for a specific performance, contains a prayer for general relief, and the answer admits the payment of a part of the purchase-money, and contains an offer to settle; it was Held, that the Court, although it cannot decree a specific performance for want of a sufficient writing within the statute of frauds, will, nevertheless, decree an account and repayment.

CAUSE removed from the Court of Equity of Johnston county.

The bill alleges, that some time in the year 1852, the defendant contracted with the plaintiff to convey to him a small tract of land, in the county of Johnston, containing one hundred and fifty acres, for in consideration of the sum of $450,00; that no memorandum of the contract was made at the time; that by the terms of this agreement, the plaintiff was to pay the purchase-money in such instalments, and at such times as should be most convenient; that defendant was to retain the title until all the money was paid; that in pursuance of this agreement, the plaintiff, on the 21st of August, 1852, made the first payment, and took from the defendant, the following receipt:

“Received, this 21st of August, 1852, of Henry Capps one hundred dollars, in part payment of a greater sum due to me, on a bargain, made by us, for a tract of land, lying on the north side of the Watery Branch, in the county of Johnston, and State of North Carolina, containing one hundred and fifty acres. It is also stipulated between us, that so soon as the balance of the money is paid me, I shall then be bound to make him a lawful and just deed for the same.” (Signed,) William D. Holt.

The plaintiff relies upon this, as being a sufficient memorandum of contract, within the statute of frauds.

The bill further alleges, that the plaintiff made several other payments, at different times, and that he several times applied to the defendant, offering to make the final payment, and demanding a conveyance; but the defendant refused to comply with his agreement.

The defendant, in his answer, admits the payment of a part of the purchase-money, but denies the sufficiency of the receipt of the 21st of August, as an evidence of the contract, within the requirements of the statute of frauds.

The answer alleges further, that by the terms of the verbal contract, the purchase-money was to be paid within a time certain, and the plaintiff having failed so to pay, defendant, several times, offered to come to a fair settlement with him by the...