Galloway v. Goolsby

• Decision Date: 11 December 1918
• Docket Number: 362.
• Citation: 97 S.E. 617,176 N.C. 635
• Parties: GALLOWAY v. GOOLSBY.
• Court: North Carolina Supreme Court

97 S.E. 617

176 N.C. 635

GALLOWAY v. GOOLSBY.

No. 362.

Supreme Court of North Carolina

December 11, 1918

Appeal from Superior Court, Rockingham County; Shaw, Judge.

Action by J. M. Galloway against Fleming Goolsby. Judgment for plaintiff, and defendant appeals. No error.

In an action for the purchase price of a tract of land, allegations in the answer that statements of the vendor, as to the number of acres, were false and fraudulent, were insufficient to raise the issue of fraud, where it was not alleged that there was an intent to defraud and deceive.

This is an action to recover judgment for balance due on the sale of a tract of land made by plaintiff's father and devisor to the defendant. The defendant contends that he bought by the acre on a basis of 97 acres, and that on an actual survey since signing the contract the land contains only 81 acres and that he has overpaid the plaintiff by mistake $17.50. The plaintiff contends that the contract was in writing; that he sold, and the defendant bought, the "Turner Wall tract" of land for $700; that there is no mention of the price per acre which is stated to be $700 the price of the land." Deducting the payments made, the difference between $700 and the amount paid, the balance due is $206.35 with interest from June 17, 1918, for which amount there was verdict and judgment.

The contract for the sale of the land is as follows:

"Madison N. C., Sept. 15, 1906.

This paper witnesses a contract for the sale and purchase of land by and between John M. Galloway, first party, and Fleming Goolsby, second party, both of Rockingham county, North Carolina, as follows:

The tract of land is commonly called the 'Turner Wall tract,' and is at present occupied by him as tenant. It lies in Huntsville township, directly south of the public road leading from Wentworth to Rocky Springs, adjoining the lands of T. B. Knight, Susan Roberts, Fleming Goolsby, the Oliver land, and others, containing about 97 acres. The price of the land is $700 (seven hundred dollars); $100 (one hundred dollars) is paid in cash, the receipt of which is hereby acknowledged; $100 (one hundred dollars) is to be paid May 1, 1907, 1908, 1909, 1910, 1911, and 1912, with privilege to second party of paying it all at any time, all deferred payments bear interest from the date of this contract at the rate of 6 per cent. per annum, failure to make a payment at the time specified makes the whole amount unpaid due at once, on completion of the payments above specified first party binds himself, heirs, and personal representatives to make the second party a general warranty deed of said land. Possession given at once to second party, with the right of collecting the rents and the crops of 1906.

Witness our hands and seals.

Fleming Goolsby. [ Seal.]

John M. Galloway. [ Seal.]" The jury found upon the issues submitted that the plaintiff's testator and defendant made the contract for the purchase of the land, as set out in the written agreement, and the defendant obtained possession thereunder, and that the plaintiff is ready, able, and willing to convey to the defendant title to the same, and find that the balance due is $206.35, with interest from June 17, 1918. It was agreed by the parties that this was the correct amount, unless the defendant was entitled to an abatement in the price by reason of the shortage in the acreage. From the judgment on the verdict the defendant appealed.

J. R. Joyce, of Reidsville, and M. F. Douglas, of Greensboro, for appellant.

P. W. Glidewell and C. O. McMichael, both of Reidsville, for appellee.

CLARK C.J.

The assignments of error are:

1. That the court erred in refusing to give the defendant judgment on the pleadings, because the plaintiff did not reply to the defendant's further answer containing the counterclaim for an abatement in price because of shortage in the acreage, and the second assignment of error is for refusal to instruct the jury that "for lack of such reply the counterclaim must be taken as true without any evidence."

The complaint sets out the contract, which is in writing and alleges that $700 was the amount due, less the payments made, and that the land was sold as a tract, and not by the acre. The answer alleged that the agreement was by the acre, and that therefore the land had been fully paid for. This was not a counterclaim, but a defense, and the plaintiff was not called upon to repeat what he had already alleged in his complaint. If the contract had been as the defendant alleged, the defendant might have asked for the recovery of $17.50 overpayment; but he does not do so, and on the finding of the jury on the first issue there could have been no recovery even of that amount.

Assignment of error 3, was for refusal to charge that the land described in the complaint was purchased by the acre, and that the number of acres in the tract was 81. The court properly refused to so charge. The contract was in evidence, and was in writing, and stated that the land sold was the Turner Wall tract, describing it, "containing about 97 acres," and added, "The price of the land is $700." This could not be varied or changed by parol testimony, and the court properly refused to charge that the evidence of the defendant should be taken as true. In Smathers v. Gilmer, 126 N.C. 757, 36 S.E. 153, the court said, as quoted in Stern v. Benbow, 151 N.C. 462, 66 S.E. 446:

"In a contract to convey, or a conveyance of land, if there is a shortage in the number of acres, the grantee is not entitled to a pro rata abatement in the

...