Craig-Little Realty & Insurance Co. v. Spurrier

• Decision Date: 16 December 1925
• Docket Number: 458.
• Citation: 130 S.E. 624,190 N.C. 726
• Parties: CRAIG-LITTLE REALTY & INS. CO. ET AL. v. SPURRIER ET AL.
• Court: North Carolina Supreme Court

130 S.E. 624

190 N.C. 726

CRAIG-LITTLE REALTY & INS. CO. ET AL. v. SPURRIER ET AL.

No. 458.

Supreme Court of North Carolina

December 16, 1925

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

Action by the Craig-Little Realty & Insurance Company and another against J. G. Spurrier and others. Judgment for defendants and plaintiffs appeal. New trial.

Contract relating to sale of real estate held not mere contract of agency.

The defendants executed and delivered to the Craig-Little Realty & Insurance Company the following paper:

"Exclusive Agency Contract.

We hereby authorize Craig-Little Realty & Insurance Company to act as our agent, for a period of 30 days from date, December 8, 1923, to negotiate the sale of our property described at the price of $3,000 net to us. In the event of sale, I agree to furnish good and sufficient title.

Location 902 E. 4th. Lot about 48x113. Terms: Cash. J. G. Spurrier Owner.

Mrs. J. G. Spurrier, Owner.

Witness: A. G. Craig."

The plaintiffs allege that in pursuance of this agency contract they agreed with W. A. Watson to sell him the lot for cash; that Watson was ready, able, and willing to comply with the terms of his agreement; and that he demanded of the defendants a title in fee. They allege, also, that on January 5, 1924, they gave personal notice to the defendants of said sale and demanded a deed from them for the property; that the defendants failed to execute such deed and were notified by the plaintiffs within the 30 days specified in the contract that the sale had been made and that the execution of a deed was demanded. The plaintiffs offer to pay the sum of $3,000, to the defendants, and upon their refusal to accept pray judgment for specific performance, in accordance with the terms of the contract.

The defendants admit the execution of the agency contract, and by way of defense allege that some time early in December A. G. Craig, of the Craig-Little Realty & Insurance Company, approached the executors of the estate of Mrs. Ida L. Austin, deceased, and wanted to secure an agency contract for the sale of the real property belonging to said estate located on McDowell and Fourth streets, and the said A. G. Craig, learning that the defendants were the owners of a lot in the midst of the estate property, approached the defendants for an agency contract on their lot, also stating that he could handle the estate property to a much greater advantage by handling the defendants' property with it; that the defendants told him they would, under no circumstances, be willing to put their property in for sale with the estate property, unless their sister, Mrs. J. W. Ray, would put her lot in also, as they would not want to sell and have to move away from the neighborhood in which their sister lived, but if their sister would consider putting her lot in, they would themselves consider the matter. They allege that the defendants and the executors of the estate of Mrs. Ida L. Austin, deceased, and Mrs. Ray, advised among themselves with reference to giving the plaintiff Craig-Little Realty & Insurance Company an agency contract for the sale of all the property on a basis of a total price of $29,500, divided as follows: Corner house, $12,000; lot on McDowell street, $4,000; lot on Fourth street, $6,000; Spurrier lot, $3,000; Ray lot, $4,500. That the defendants agreed with the said A. G. Craig that they would sign an agency contract, which they did upon the express condition and consideration that the same should be taken in connection with an agency contract signed by the executors of the estate of Mrs. Ida L. Austin, deceased, and an agency contract signed by Mr. and Mrs. J. W. Ray, that all of the property should be sold as a whole; and that said agency contract was predicated and based on said condition and agreement; that the defendants were willing to sell their lot for less than its actual and real value, in order to effect a sale of the balance of the property adjoining, in which they had an interest, and the defendants would not have given Craig-Little Realty & Insurance Company an agency contract for the sale of their lot, to be sold separate and apart from the other property. They allege, also, that the plaintiffs did not get a purchaser for the estate property and did not get a purchaser for Mrs. Ray's lot, but, knowing that the price placed upon the defendants' property was very small, undertook to get a purchaser for it, and are now seeking and attempting to make the defendants dispose of their lot separate and apart from the disposal of the other property, in absolute violation of the agreement between the defendants and the plaintiff Craig-Little Realty & Insurance Company. The defendants also pleaded the statute of frauds in bar of the plaintiffs' recovery.

At the trial plaintiffs tendered the following issue:

"Is the plaintiff W. A. Watson entitled, as alleged in the complaint, to require the defendants to execute and deliver to the plaintiff a deed to the property described in the complaint?"

This issue was declined, and the plaintiffs excepted.

The court submitted the following issues, and the plaintiffs excepted:

(1) Were the defendants induced to sign the paper writing attached to the complaint as Exhibit A by reason of the express condition and understanding that the same was to be effective as authority to sell only in the event the sale made was of the Mrs. J. W. Ray lot, the Ida L. Austin estate property, and the lot of the defendants, as alleged in defendants' further answer and defense? A. Yes.

(2) Is the plaintiffs' cause of action barred by the statute of frauds, Consolidated Statutes, § 988, for that no memorandum or note of the contract sued on was put in writing and signed by the party to be charged therewith or by some other person by him thereto lawfully authorized? A. No.

(3) Is the plaintiff W. A. Watson entitled, as alleged in the complaint, to require the defendants to execute and deliver to the plaintiff a deed to the property described in the complaint? A. No.

There was a judgment for the defendants and the plaintiffs appealed assigning error.

H. L. Taylor and C. H. Gover, both of Charlotte, for appellants.

Stewart, McRae & Bobbitt, of Charlotte, for appellees.

ADAMS J.

This is an action to enforce the specific performance of a contract relating to land. The contract purports to have authorized the Craig-Little Realty & Insurance Company to act as the defendants' agent for a period of 30 days from December 8, 1923, to effect a sale of their property at the net price of $3,000. The defendants admit they signed the contract, but allege they did so upon the express condition that it should be taken in connection with similar contracts signed by J. W. Ray and his wife and by the executors of Ida L. Austin, and that the several lots should be sold as a whole. They allege theirs was an agency contract predicated or based upon this express agreement. During the trial they offered evidence in support of these allegations. The plaintiffs objected, but the evidence was admitted, and the first thirteen exceptions which go to the heart of the controversy are an assault upon the competency of this evidence; the specific ground of exception being an alleged infringement of the rule which prohibits the admission of parol evidence to vary the terms of a written instrument.

In Moffitt v. Maness, 102 N.C. 457, 9 S.E. 399, it is suggested that there is too great a tendency to relax the settled rules of evidence against the admissibility of parol testimony to contradict, vary, or add to the terms of a written contract, and that there is danger of construing away a principle which has always been considered one of the greatest...