Durham Consol. Land & Improvement Co v. Guthrie

• Decision Date: 22 November 1898
• Citation: 31 S.E. 601,123 N.C. 185
• Court: North Carolina Supreme Court
• Parties: DURHAM CONSOL. LAND & IMPROVEMENT CO. v. GUTHRIE et al.

31 S.E. 601

123 N.C. 185

DURHAM CONSOL. LAND & IMPROVEMENT CO.

v.GUTHRIE et al.

Supreme Court of North Carolina.

Nov. 22, 1898.

Judgment —Res Judicata — Vendor and Purchaser.

Plaintiff abandoned a contract to buy land after making certain payments, for which he brought suit. He failed to recover, and was compelled to pay a judgment for waste, which defendant by a counterclaim alleged he had committed. After defendant regained possession he sold a part of the land for more than plaintiff contracted to pay for the whole. Held, that plaintiff was estopped to recover the difference between the contract price and the price received by defendant.

Appeal from superior court, Durham county; Robinson, Judge.

Action by the Durham Consolidated Land & Improvement Company against W. A Guthrie and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Manning & Foushee, for appellant. Winston & Fuller, Graham & Graham, and Boone & Bryant, for appellees.

FURCHES, J. On and before the 1st of October, 1890, the plaintiff and the defendants were land speculators, buying and selling land for a profit, in and near the town of Durham. As such, the defendants had purchased, but not paid for, one lot in the town of Durham from one Hicks, one tract of land lying near the town of Durham containing about 47 acres from one Ferrell, and another tract of about 26 acres from one Fowler. On the 1st day of October, 1890. the plaintiff and the defendants made and entered into the following contract and agreement as to the above-described lands: "Durham, N. C, Oct. 1, 1890. We will let you take the property at its actual cost to us, and on the same terms we bought it, which are about as follows: Cash payment, $2,500; $4,275 in one year from date of purchase; and $1,600 in 18 months from date of 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 are 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 proceeds is to be equally divided between us and yourselves. [Signed] T. S. Morgan, for Guthrie, Carr and Morgan." "Accepted: R. H. Wright, Sec. & Treas." The plaintiff, soon after the date of this contract, of October 1, 1890, entered upon and took possession of these three parcels of land, rented out the town lot, cut and hauled wood from the other tracts, and did other work thereon, which the defendants allege greatly damaged the market value thereof. Not long after the date of the contract of October 1, 1890, the plaintiff corporation, by its president, J. S. Carr, paid the defendants $2,-500, which they say they used in part payment for lands mentioned in said contract. The plaintiff declined to pay anything more, although payment was demanded, and abandoned its contract. And the defendants, some time in February or March, 1892, took possession of said lands, the plaintiff not having sold the same, and, as defendants allege, not having tried to sell them; and the defendants have since sold a part of said lands, and still hold a part of them unsold. The plaintiff, having abandoned said contract, on the 25th of September, 1893, commenced an action against the defendants to recover the $2,500 and interest so paid by tne plaintiff, alleging in its complaint that it was for money loaned to the defendants and paid for their benefit. The defendants answered this com-plaint, admitting the receipt of the $2,500, but denied that they borrowed the same, or that it was paid by the plaintiff for them or for their benefit, set up the...