Gilbert v. Thomas
| Decision Date | 18 October 1983 |
| Docket Number | No. 828SC967,828SC967 |
| Citation | 64 N.C.App. 582,307 S.E.2d 853 |
| Court | North Carolina Court of Appeals |
| Parties | Robert H. GILBERT v. Joe Q. THOMAS, Jr. |
Wallace, Barwick, Landis, Rodgman & Bower, P.A. by P.C. Barwick, Jr. and Joseph S. Bower, Kinston, for plaintiff-appellant.
White, Allen, Hooten, Hodges & Hines, P.A. by Thomas J. White and John R. Hooten, Kinston, for defendant-appellee.
On 24 March 1979, plaintiff Robert H. Gilbert, made the high bid to purchase the J.W. Gates Farm at an auction conducted by Barrow-Kennedy Auction Company (Barrow-Kennedy). Barrow-Kennedy acted as selling agent for the true owners, Gates' heirs. Originally the farm had been offered at auction as nine separate tracts, identified as such on the Barrow-Kennedy sales map. Barrow-Kennedy next offered to sell the farm in groups of two or three tracts, and then, even later, offered to sell the farm as a whole. According to the Barrow-Kennedy map, only two of the nine tracts, tracts 8 and 9, carried tobacco allotments. Since the total price of the entire farm to Gilbert was higher than anticipated, Gilbert advertised to sell his right to purchase twenty acres of the farm, tracts 1 and 2 on the Barrow-Kennedy map. The closing on all the tracts had to be made on or before 24 April 1979.
On 11 April 1979 defendant, Joe Q. Thomas, Jr., agreed in writing "to purchase Tract Number 1 and Number 2 of the Gates Farm (Barrow-Kennedy Map dated 24 March 1979) for the price of $51,250.00." The existence of a tobacco allotment was not discussed. Under the terms of the agreement, Gilbert received $1,250.00 as a binder. The balance was to be paid to Barrow-Kennedy on 23 April 1979.
The following day, 12 April 1979, Thomas entered into a contract of sale with W.W. Kennedy of Barrow-Kennedy to purchase Tracts 1 and 2 for $51,250.00. The contract specifically stated "These tracts do not contain tobacco allotments with them." Under the terms of the contract, Thomas made an $11,250 down payment--$10,000 deposited with Kennedy, and the $1,250 he previously paid to Gilbert. The balance was due on or before 24 April 1979.
Kennedy testified that he informed Thomas prior to signing the 12 April 1979 contract that Thomas would have to execute a U.S. Department of Agriculture, ASCS Form 155 before the closing on 23 April 1979. The sale of the farm had precipitated a reallocation of the tobacco allotments. Form 155 served to waive any tobacco allotment granted to Tracts 1 and 2. Thomas assured Kennedy that he would sign the form before the closing, but he failed to do so, despite repeated reminders by Kennedy. As a result, the ASCS committee gave Thomas 2219 pounds of the Gates Farm's tobacco allotment. Further, the deed conveying Tracts 1 and 2 to Thomas contained no reservation of the tobacco allotment to the grantor.
Gilbert brought this action against Thomas for breach of the 12 April 1979 contract and for fraud. At the close of Gilbert's evidence, Thomas was granted a directed verdict. Gilbert appeals.
Gilbert excepts and assigns error to the trial court's granting of Thomas' motion for directed verdict. Gilbert argues that there was sufficient evidence of "the existence of a contract between defendant and plaintiff" to withstand the motion for directed verdict.
On appeal, Gilbert frames the question for this Court in the broad language of the motion for directed verdict. "In passing upon a trial judge's ruling as to a directed verdict, we cannot review the case as the parties might have tried it; rather, we must review the case as tried below, as reflected in the record on appeal." Tallent v. Blake, 57 N.C.App. 249, 252, 291 S.E.2d 336, 339 (1982). In the pleadings, Gilbert based his actions for breach of contract and for fraud solely on the 12 April 1979 contract. He alleged that Kennedy acted as his agent in the transaction. The parties later stipulated in a pre-trial order that the Gilbert's issue on breach of contract was: "Did the defendant breach his contract with the plaintiff as alleged in the complaint?" A pre-trial order "controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice." N.C.Gen.Stat. § 1A-1, Rule 16 (1969) (emphasis added). In this case, Gilbert had not asked leave to modify the pre-trial order prior to the granting of the motion. Thus, the narrow issue before the trial court required evidence of an agency relationship to support the action for breach of the 12 April 1979 contract.
Gilbert offers this Court five new theories to establish the existence of a contract between plaintiff and defendant: (a) the 11 April 1979 agreement created a binding contract; (b) the 11 April 1979 agreement is a contract of assignment; (c) the reservation of the tobacco allotment was omitted by Gilbert and Thomas from the 11 April 1979 contract by mutual mistake and the parties should be allowed to reform the contract; (d) Gilbert is an intended beneficiary of the 12 April 1979 contract; and (e) the 12 April 1979...
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