Chason v. Marley

• Decision Date: 03 January 1945
• Docket Number: 670
• Citation: 32 S.E.2d 652,224 N.C. 844
• Parties: CHASON v. MARLEY et al.
• Court: North Carolina Supreme Court

32 S.E.2d 652

224 N.C. 844

CHASON v. MARLEY et al.

No. 670

Supreme Court of North Carolina

January 3, 1945

This is a civil action upon an alleged contract between plaintiff and defendants for the purchase and sale of real property owned by the defendants in the Town of Lumber Bridge, County of Robeson, wherein the plaintiff alleges the contract, the performance thereof on his part, by making the agreed payments of principal and interest monthly, and the payment annually of the insurance premiums and taxes on the property and the nonperformance of the contract by the defendants by declining to convey the property to the plaintiff upon his demand for such conveyance. The plaintiff seeks specific performance of the alleged contract. The defendants answer and deny the contract and the plaintiff's performance thereof, and plead the Statute of Frauds.

When the plaintiff had introduced his evidence and rested his case, the defendants moved the Court for a judgment as in case of nonsuit, or to dismiss the action, G.S. s 1-183 which motion was allowed, and from judgment predicated on such ruling the plaintiff appealed, assigning error.

F D. Hackett and Varser, McIntyre & Henry, all of Lumberton, for plaintiff, appellant.

Robert H. Dye, of Fayetteville, for defendants, appellees.

SCHENCK, Justice.

The defendants, the parties sought to be charged in this action could simply deny the contract alleged, or they could plead the Statute of Frauds, or they could do both as they have elected so to do, and if either plea is made good the said contract cannot be enforced, and the action cannot be maintained. Henry v. Hilliard, 155 N.C. 372, 71 S.E. 439, 49 L.R.A.,N.S., 1, and cases there cited.

The plaintiff relied upon certain receipts given to him from time to time by the defendants and certain checks given by him to defendants which were accepted, endorsed, and cashed by the defendants to satisfy the Statute of Frauds, G.S. s 22-2. The Statute reads: 'All contracts to sell or to convey any lands, * * * or any interest in or concerning them, * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.'

The receipts relied upon by the plaintiff to satisfy the Statute are substantially in the following words: 'Received of Pete Chason Thirty-five & no/100 Dollars, $25.00 on principal, $10.00 on interest. $35.00. Jessie Marley. ' None of such receipts or checks given therefor make any mention of an agreement by the defendants to sell. The plaintiff likewise relied upon certain receipts from the defendants for taxes paid by him on the property. These receipts are in substantially these words: 'Received...