Durham Consol. Land & Imp. Co. v. Guthrie

• Decision Date: 16 May 1895
• Citation: 21 S.E. 952,116 N.C. 381
• Parties: DURHAM CONSOLIDATED LAND & IMPROVEMENT CO. v. GUTHRIE et al.
• Court: North Carolina Supreme Court

21 S.E. 952

116 N.C. 381

DURHAM CONSOLIDATED LAND & IMPROVEMENT CO. v. GUTHRIE et al.

Supreme Court of North Carolina

May 16, 1895

Appeals from superior court, Durham county; Greene, Judge.

Action by the Durham Consolidated Land & Improvement Company against W. A. Guthrie and others for money due on account. Defendants set up a counterclaim. From a judgment against plaintiff on its claim, and in favor of defendants for $330 on their counterclaim, plaintiff and defendants appeal. Affirmed on both appeals.

Where a parol contract for the sale of land is repudiated by the vendor, the purchaser may recover the amount he has paid thereunder.

The defendants had contracted with Fowler, Ferrell & Hicks for certain lands in Durham county, and held their bonds for title when the purchase money was paid. In 1890 the plaintiff and defendants entered into the following agreement, marked "Exhibit B," concerning the same lands "October 1, 1890. To the Durham Consolidated Land & Improvement Company: We will let you take the property at the actual cost to us, and on the same terms as we bought it which are about as follows: Cash payments, $2,500; $4,275 in one year from date of our purchase; $1,600 in eighteen months from date of our purchase. About $3,000 of these time payments is at 6 % interest; the balance at 8%. You are to be at all expense of advertising and selling the property, and putting it in proper condition for sale to the best advantage, by opening streets and making whatever improvements is necessary to sell the property in one year from date; and, after deducting the actual expenses only from the proceeds of sale, the remainder of the proceeds is to be equally divided between us and yourselves. [Signed] S. T Morgan, for Guthrie, Carr and Morgan." The plaintiff accepted the above proposition; paid the cash sum of $2,500 took possession of the lands, cut and carried away wood, trees, etc.; received rents; and remained in possession for more than 12 months. In March, 1892, the defendants notified the plaintiff that they (defendants) were sued by Ferrell for his money then just due, and added: "We request you to comply with the terms of our contract with you, and make payment of the purchase money, and take title deeds for all the property." Nothing more was paid or done by the plaintiff, and in the spring of 1892 the defendants resumed possession of the lands. Afterwards the plaintiff demanded that the $2,500 be paid back which was refused by defendants. In September, 1893, the plaintiff commenced this action to recover the $2,500, and filed its complaint, which the defendants answered, and set up a counterclaim for the value of wood, timber, rent, etc., received during the plaintiff's possession. His honor submitted these issues: "(1) Are the defendants indebted to the plaintiff; if so, in what sum? No. (2) What is the value of the timber and rents received by the plaintiff from the lands described? $330." The court rendered judgment in favor of the defendants according to the verdict, and each party appealed.

F. H. Busbee and Shepherd, Manning & Foushee, for plaintiff.

J. W. Graham and Boone & Boone, for defendants.

FAIRCLOTH C.J.

We find from an examination of the record that the main question is can the plaintiff recover back the $2,500, paid in part performance of the agreement set out in the statement of the case? The action does not seek to enforce the contract, but to recover back the money paid; and the complaint alleges that the written agreement is defective in its descriptive part, and is therefore void by the statute of frauds, and cannot be enforced against the defendants by a bill for specific performance. The defendants answer, and say: When you perform your agreement, we are...