Davis v. Dockery

• Decision Date: 22 January 1936
• Docket Number: No. 29.,29.
• Citation: 209 N.C. 272,183 S.E. 396
• Court: North Carolina Supreme Court
• Parties: DAVIS . v. DOCKERY.

183 S.E. 396

209 N.C. 272

DAVIS .

v.DOCKERY.

No. 29.

Supreme Court of North Carolina.

Jan. 22, 1936.

Appeal from Superior Court, Cherokee County; Alley, Judge.

Action by F. L. Davis against Tom W. Dockery. From-a judgment for defendant, plaintiff appeals.

New trial.

This was an action to recover the balance of the purchase price of certain land alleged to be due under a parol agreement to convey. Defendant in his answer admitted the contract to pay the amount alleged and set up plea of payment in full.

There was conflicting evidence on the part of defendant and plaintiff as to manner and amount of payments, to be credited on the purchase price of the land.

The court below submitted the following issues to the jury:

1. "Did the plaintiff contract to sell to defendant the tract of land described in the complaint at and for the price of $1,101.60, as alleged in the complaint?"

2. "Did the defendant commit a breach of said contract of foreclosure as alleged in the complaint?"

3. "What sum, if any, is plaintiff entitled to recover on account of the purchase price of said land?"

The court instructed the jury to answer the first issue, "Yes, " as there was no controversy between the parties as to that issue.

Upon the second issue the court charged the jury as follows:

"But when you come to the second issue which is in this language, 'Did the defendant commit a breach of said contract of purchase as alleged in the complaint?' then it becomes necessary, gentlemen, before you answer that issue to consider what a breach of the contract is, the burden, as I have already indicated, being upon the plaintiff to satisfy you by the greater weight of the evidence that the defendant did commit a breach of the contract."

"Now, in this case the plaintiff contends that the defendant committed a breach of the contract because he did not pay all of the purchase price, and the defendant contends that he did pay all of the purchase price and more. If the defendant has failed and refused to pay the purchase price, why then it would be a breach, but if he has paid the full purchase price and more, he has not breached it; so with respect to that, I charge you, if you find by the greater weight of the evidence that Mr. Dockery, the defendant in this case, agreed to pay Mr. Davis the purchase price for these two tracts of land $1,101.60, and you further find by the greater weight of the evidence that he has failed and refused to perform that part of his contract by paying that amount of money, or its equivalent in value in some other way than they agreed on, and still refuses to pay the balance of the purchase price, if you find this to be the fact, by the greater weight of the evidence, why then it would be your duty to answer the second issue, 'Yes;' that is, 'Did the defendant commit a breach of his contract as alleged in the complaint?' If you fail to so find, it would be your duty to answer the second issue, 'No.'"

"Now, in this connection, I call your attention to the fact that the burden of proof is on the plaintiff to satisfy you by thegreater weight of the evidence that his contentions are true."

The jury answered the second issue in favor of the defendant, and from judgment upon the verdict plaintiff appealed.

Clyde H. Jarrett, of Andrews, and Gray & Christopher, of Murphy, for appellant.

D. Witherspoon, of Murphy, D. H. Tillitt, of Andrews,...