Clay v. Connor

• Decision Date: 22 January 1930
• Docket Number: 597.
• Citation: 151 S.E. 257,198 N.C. 200
• Parties: CLAY v. CONNOR et al.
• Court: North Carolina Supreme Court

151 S.E. 257

198 N.C. 200

CLAY v. CONNOR et al.

No. 597.

Supreme Court of North Carolina

January 22, 1930

Appeal from Superior Court, Buncombe County; Sinclair, Judge.

Suit by Bryan Clay against E. E. Connor and another. Judgment for plaintiff, and defendants appeal. New trial ordered.

Party may show different state of facts by another witness.

Plaintiff contends that the defendants agreed to sell him a house and lot and 14 shares of stock in the Fairview Gravity Water Company for the sum of $1,800. They made him a deed for the house and lot and delivered possession to him, and he thereafter enjoyed the privileges which accrued to him as the purchaser of the water stock for a period of five years, and was never called upon by the Fairview Gravity Water Company for any water rents, it being in evidence that the owner of as many as 14 shares in the Fairview Gravity Water Company had the privilege of using water from said company without paying any water rents, and only those who did own so much stock thereof were so privileged or allowed to connect to said Fairview Gravity Water Company. The defendants did not deliver the shares of stock in the water company to plaintiff, although he enjoyed the full use of the water rights, and this suit was for the recovery of the shares of stock, or their value; it being in evidence that the shares have in the meantime been sold to somebody else.

Plaintiff's prayer for judgment was as follows:

"1. That he have and recover a decree of this Court ordering and directing the said defendants to endorse and deliver to the plaintiff the said stock in the Fairview Gravity Water Company.

"2. That the plaintiff have and recover of the defendants, and each of them, judgment in the sum of $350.00, for the breach of said contract, and interest thereon from July 20th, 1921.

"3. That the deed conveying said premises to the plaintiff be reformed and made to show the total consideration therefor, as hereinbefore alleged.

"4. For the costs of this action to be taxed by the Clerk.

"5. For all other and further relief to which the plaintiff may be entitled in law and equity."

Defendants denied that they agreed to sell the 14 shares of stock in the Fairview Gravity Water Company, but sold only the house and lot.

The issues submitted to the jury, and their answers thereto, were as follows:

"1. Was the free use of the water rights by the plaintiff as a stockholder in the Fairview Gravity Water Company an appurtenance belonging to the land described in the complaint? Answer: Yes.

"2. In what amount, if any, has the plaintiff been damaged by the refusal of the defendant to transfer and deliver to the plaintiff their fourteen shares of stock in said water company? Answer: $350.00 without interest."

Judgment was rendered by the court below on the verdict. Defendants made numerous exceptions and assignments of error and appealed to the Supreme Court.

The material facts will be set forth in the opinion.

Wells, Blackstock & Taylor, of Asheville, for appellants.

Ellis C. Jones, of Asheville, for appellee.

CLARKSON J.

The plaintiff introduced evidence to the effect that he purchased the house and lot for $1,800, "with all the appurtenances thereunto belonging or in any wise appertaining"; that he purchased with the house and lot the 14 shares of stock valued at $350, in the water company, and defendants failed and refused to deliver same. The defendants denied that they sold the stock.

The defendant E. E. Connor testified as follows: "In June, 1922, I went out to Fairview and had a conversation with Mr. Clay, and offered to sell him my stock for one-half of what I originally offered. I had originally offered it for $350.00. He asked me to give him ten days to consider. I told him I had not come out with such a proposition, but if he wanted ten days I would give it to him." This evidence was objected to by plaintiff, and the court below sustained the objection, and defendants excepted and assigned error. The court below should have admitted the testimony.

J. E. Shuford, a witness for defendants, testified:

"I was present with Mr. Connor some time in 1922, when he had a conversation with Mr. Clay at Fairview concerning the stock.

"Q. After that, after the conversation with Mr. Connor and Mr Clay, when you were present, did you have another conversation with...