Farthing v. Rochelle Et Ux

Citation131 N. C. 563,43 S.E. 1
CourtUnited States State Supreme Court of North Carolina
Decision Date18 December 1902
PartiesFARTHING et al. v. ROCHELLE et ux.

SPECIFIC PERFORMANCE — SUFFICIENT DESCRIPTION—IDENTIFICATION OF LAND—EVIDENCE—VENDEE'S WILLINGNESS TO PERFORM.

1. Plaintiff telegraphed defendant, "I will give you two thousand dollars for your lot, if accepted to-night, " and defendant replied, "Will accept your offer." Held, that the description, "your lot, " was too indefinite to admit of parol evidence to identify the land in a suit for specific performance.

2. Acts 1891, c. 465, providing that, in actions for possession of or title to realty, parol testimony may be introduced to identify the land sued for, did not do away with the necessity of all description, but simply such particularity of description as would frequently be beyond the immediate reach of the ordinary vendor, so that in a suit for specific performance there must be some form of description to which the evidence can be directed, and by which it may be fitted to the land.

3. In a suit for specific performance of a contract to sell land, in which the description of the property was indefinite, evidence of former negotiations not connected with the contract sought to he enforced, and of a deed to a third party made after commencement of the suit, was not admissible as evidence to locate the land.

4. In a suit to specifically enforce a contract to convey land, it appeared that the vendee at the time of the alleged contract knew that the vendor was a married man, and subsequent to the making of the contract, and on refusal of the vendor's wife to sign the deed, offered to pay the vendor two thirds of the agreed price, and deposit the other third subject to the wife's order when she should sign the deed. Held, that an instruction that, if the jury believed the evidence, they should find that the vendee had been at all times ready and willing to perform, was properly refused.

Appeal from superior court, Durham county; Thos. J. Shaw, Judge.

Action by G. C. Farthing and others against C. W. Rochelle and wife. From a judgment for defendants, plaintiffs appeal. Affirmed.

This is an action for the specific performance of a contract for the sale of land. It is based upon the following correspondence:

Exhibit A: "March 6, 1901. To C. W.

Rochelle, Reidsville, N. C:

I will give you two thousand dollars for your lot, if accepted to-night. [Signed] G. C. Farthing."

Exhibit B: "8:10 a. m., March 7, 1901. Reidsville, N. C: G. C. Farthing: Will accept your offer. [Signed] C. W. Rochelle."

Exhibit C: "Reidsville, N. C, March 7, 1901. Mr. Farthing: In reply to your message last night, I did not make my reply complete. It should have read thus: 'Your offer accepted, if not already sold.' Brady, the Jew, has offered Elliott $2,000, and 1 wrote Elliott the first of this month to close a deal with him. So if he had made a deal previous to last night at 9 o'clock, I will have to call in the acceptance of your offer. See Mr. Elliott, please, and see if he has made or closed the deal with Brady. I was so excited over the announcement of a telegram for me delivered at my residence, and after I had retired, too, that I could not collect myself sufficient to put the reply in proper shape. The cause of my becoming so wrought up over it was that my mother has been very sick for the past three weeks, and I was sure it was a message announcing her death, or that she was dying. So you can imagine how I felt, and, if Elliott has made a deal with Brady before 9 o'clock last night, I hope you will pardon me for the incomplete message sent you, and not think hard of me for this incomplete message or reply; but, on the other hand, if the deal referred to has not been made, let me hear from you, and I will fix up deed and send you in a short time. Yours respectfully, [signed] C. W. Rochelle."

Exhibit F: "Durham, N. C, March 12, 1901. Mr. C. W. Rochelle, Reidsville, N. C— Dear Sir: Yours of the 11th inst. to hand, In which you say for me to suggest a way for you to make me a lawful deed, and you will sign it, although your wife still refuses to sign it. So, in compliance with your request, I will suggest for you to make a deed in regular form, and sign it before the clerk of the court, and have his seal attached, and forward same to me, or A. J. Draughan, and I will pay you two-thirds of $2,000, or $1,333.33, and will deposit one-third, or $666.-67, in either of our banks, subject to yourwife's order when she assigns the deed, or at her death. I know she can dower one-third of same, and no more. Trusting this will be entirely satisfactory to you, and that yon will follow my suggestion at once, I am yours truly, [signed] G. C. Farthing."

The following is the charge of the Judge, as set out in the record:

"His honor, after explaining the nature of the action as set out in the pleadings, and after reading his notes of the evidence, charged the jury, among other things, as follows: 'If you believe the evidence, you will find that plaintiff Farthing sent to the defendant the telegram of March 6th, and that the defendant sent to the plaintiff Farthing the reply dated March 7th. The two telegrams do not sufficiently describe the property to admit parol evidence to identify the land.' To which charge plaintiffs excepted. (Exception 6.)

"The court likewise charged that, if the plaintiffs have not shown by a preponderance of the evidence that A. G. Elliott was the Elliott referred to in the letter of March 7th, the Jury will answer the first issue, 'No.' To which charge the plaintiffs excepted. (Exception 7).

"The court likewise charged the Jury that the acts and...

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13 cases
  • Rodman v. Robinson
    • United States
    • United States State Supreme Court of North Carolina
    • March 29, 1904
    ......Having taken the contract without the wife's signature, the plaintiff could not obtain a decree compelling her to join in the deed. Farthing v. Rochelle, 131 N. C. 563, 43 S. E. 1; Fortune v. Watkins, 94 N. C. 304. The Code, § 2106, recognizes the right of the husband to alien ......
  • Rodman v. Robinson
    • United States
    • United States State Supreme Court of North Carolina
    • March 29, 1904
    ......Having. taken the contract without the wife's signature, the. plaintiff could not obtain a decree compelling her to join in. the deed. Farthing v. Rochelle, 131 N.C. 563, 43. S.E. 1; Fortune v. Watkins, 94 N.C. 304. The Code, §. 2106, recognizes the right of the husband to alien without. ......
  • Fisher v. Miller
    • United States
    • United States State Supreme Court of Florida
    • June 29, 1926
    ......Young, 6 Wis. 127, 70 Am. Dec. 453;. O'Malley v. Miller, 148 Wis. 393, 134 N.W. 840;. Stone v. Stanley, 92 N. J. Eq. 310, 112 A. 496;. Farthing [92 Fla. 60] v. Rochelle, 131 N.C. 563, 43 S.E. 1; Elwood v. Smith, 95 N. J. Eq. 195,. 122 A. 889; People's Sav. Bank v. Parisette, 68. Ohio St. ......
  • Jones v. Charleston & W. C. Ry. Co
    • United States
    • United States State Supreme Court of South Carolina
    • February 27, 1903
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