Dunkart v. Rineheart

• Citation: 89 N.C. 354
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1883
• Parties: HENRY DUNKART v. WILLIAM W. RINEHEART and others.

89 N.C. 354

HENRY DUNKART

v.WILLIAM W. RINEHEART and others.

Supreme Court of North Carolina.

October Term, 1883.

CIVIL ACTION tried at Spring Term, 1883, of HAYWOOD Superior Court, before Avery, J.

The plaintiff appealed.

Mr. G. H. Smathers, for plaintiff .

No counsel for defendant.

SMITH, C. J.

The plaintiff, in the statement of his cause of action, alleges that the defendant Rineheart entered into a written contract with him, for the sale of black walnut trees, in the following form:

“WAYNESVILLE, N. C., February 23, 1881.

I, William Rineheart, of Waynesville, N. C., agree to sell unto Henry Dunkart, of Asheville, N. C., any of my black walnut trees, not exceeding fifteen in number, that will girth eight feet six inches in circumference, and under ten feet, at $2 each, and all trees measuring ten feet in circumference and upwards at $2.50 each. I also agree to give the necessary right of way through my land to get said timber to public road.

Received on account of above contract, sixteen dollars.

W. W. RINEHEART.”

That Rineheart subsequently contracted to sell the land, whereon the said trees were standing, to one Boyd, and executed a bond to make title when the purchase money was paid, and the interest acquired by him has since been assigned to the defendant McCracken, each of whom, before the sale to Boyd, were informed by the vendor of his contract with the plaintiff and his precedent right to the trees specified therein;

That the defendant Herren claims the said timber by virtue of a purchase from his co-defendant McCracken;

That the defendants McCracken and Herren have entered into possession of the land and are cutting down the walnut trees and threaten to fell and remove all of them, including as well those mentioned in the plaintiff's contract.

The prayer is for specific performance in permitting plaintiff to remove his trees--for damages in the sum of five hundred dollars--for an injunction against interfering with the plaintiff's trees and his possessing himself of them, and for general relief.

The defendants McCracken and Herren alone answer, controverting most of the plaintiff's allegations, and asserting that no reservations are contained in the title bond or in the assignment of the interest of the obligee, and that the plaintiff's contract was not registered when the land was sold to Boyd.

It is unnecessary to set out the specific averments in the answer, for reasons that will hereafter appear.

No distinct issues were submitted to the jury, and the trial proceeded upon the idea that the plaintiff must show his right of recovery as under a general denial, according to the former practice. We pause here to remark that this is not the method of procedure established under C. C. P., and in contravention of a rule adopted by this court at June term, 1871, in reference to jury trials in the superior court. 4 Bat. Dig., 433.

Upon the trial the plaintiff offered to show by oral testimony that the defendant Rineheart had but one tract of land upon which walnut trees of the dimensions specified were growing at the date of his purchase, and this was the same described in the title bond of McCracken, and that upon it there were growing, when the plaintiff bought, not more than ten trees of the required size, and these were of great value.

To this evidence the defendants objected, on the ground that the descriptive words used in the contract to designate the subject of sale were too indefinite to be aided by parol, and, as to the defendants McCracken and Herren, the contract in its terms was too vague to put them on notice. The testimony proposed was ruled out, and the plaintiff excepted.

The defendants further insisted that the complaint did not state facts sufficient to constitute a cause of action against those defendants.

The court intimated the opinion that proof of all the allegations in the complaint, subject to the previous ruling as to admissibility, would not...