Appeal
from Superior Court, Mecklenburg County; Cowper, Special
Judge.
Action
by John D. Hager against Grover Whitener, administrator of
the estate of James L. Hager. Judgment for plaintiff, and
defendant appeals.
No
error.
The
plaintiff's complaint, in part, is as follows:
"That
James L. Hager, of late a citizen and resident of
Mecklenburg County, North Carolina, died intestate on or
about the 23d day of August, 1930. That Grover Whitener has
duly qualified and is now acting as administrator of the
estate of said James L. Hager.
"That
prior to December 23, 1928, the plaintiff lived with his
wife and children on a farm, in Lemley Township
Mecklenburg County, North Carolina, which was then the
property of the plaintiff.
"That
prior to said date, said James L. Hager lived at his own
residence which was then located in or near the town of
Cornelius, North Carolina.
"That
on or about the 20th day of December, 1928, said James L.
Hager urged and solicited the plaintiff to dispose of his
property and to assist said James L. Hager in purchasing
another tract of land near Cornelius, N. C., as tenant in
common with said James L. Hager, and to move with his
family into a certain house on said other tract of land and
to live there with said James L. Hager during the life of
said James L. Hager, said James L. Hager offering and
proposing to compensate plaintiff therefor by cancelling a
certain note for $800.00, which has previously been
executed by plaintiff to said James L. Hager, and by
executing and leaving a will devising all of the property
of said James L. Hager to plaintiff.
"That
in consequence of said solicitation upon the part of said
James L. Hager, plaintiff accepted the proposal of said
James L. Hager and, thereupon, plaintiff and said James L.
Hager entered into a contract containing the following
provisions: (a) That plaintiff should immediately sell and
dispose of his own farm, in Lemley Township, Mecklenburg
County, North Carolina, consisting of approximately 66 1/2
acres, with valuable building thereon; (b) That the
plaintiff and said James L. Hager should purchase, as
tenants in common, another tract of land in or near
Cornelius, N. C., containing about 25 acres, the plaintiff
to pay one-half of the purchase price therefor; (c) That
plaintiff and his wife and children and said James L. Hager
should move into a certain house located on said 25 acre
tract; (d) That said James L. Hager should live with
plaintiff and plaintiff's family for the rest of his
life; that plaintiff should cultivate said 25 acre tract of
land and certain other farm lands owned by said James L.
Hager; and that plaintiff should help take care of said
James L. Hager during the life of said James L. Hager. (e)
That said James L. Hager should cancel a certain note, for
$800.00 which had previously been executed by plaintiff to
said James L. Hager. (f) That said James L. Hager should
and would give, bequeath and devise to the plaintiff, by
will, all property owned by said James L. Hager."
The
plaintiff further alleges, setting forth same in detail, that
he complied in all respects with his part of the contract,
and that the "said James L. Hager failed to execute any
will and died intestate," thus breaching his contract.
"Wherefore the plaintiff prays: (1) That the defendant
be ordered and required to cancel said $800.00 note, and
surrender same to the plaintiff; and, (2) That the plaintiff
have and recover of the defendant the sum of $12,800.00
damages for the breach of said contract, and the costs of the
action."
The
defendant denied the material allegations of the complaint
and set up counterclaim, and pleaded the statute of frauds,
C. S. §§ 987, 988.
The
issues submitted to the jury and their answers thereto were
as follows:
"1.
Did the plaintiff, John D. Hager and Jas. L. Hager, during
the lifetime of the said Jas. L. Hager, enter into a contract
as alleged in the complaint? Answer: Yes.
"2.
If so, did the plaintiff, John D. Hager, on his part, comply
with all of his obligations under said contract? Answer: Yes.
"3.
Did the said James L. Hager breach
said contract as alleged in the complaint? Answer: Yes.
"4.
What amount, if any, is plaintiff entitled to recover?
Answer: $8,500 (Eight thousand and five hundred
dollars.)"
The
court below rendered judgment on the verdict. There were
certain stipulations between the parties in reference to the
$800 note, and the judgment conformed to same. The defendant
made numerous exceptions and assignments of error and
appealed to the Supreme Court. The material ones and
necessary facts will be considered in the opinion.
Kemp
Battle Nixon and H. A. Jonas, both of Lincolnton, and Hiram
Whitacre, J. Laurence Jones, and Geo. W. Wilson, all of
Charlotte, for appellant.
Guy T.
Carswell and Joe W. Ervin, both of Charlotte, for appellee.
CLARKSON
Justice.
We
think that plaintiff's evidence was sufficient to sustain
the allegations in the pleadings. Defendant's intestate,
James L. Hager, was a bachelor and an old man when he died.
The testimony of J. B. Readling was to the effect that the
relationship between plaintiff, John D. Hager, and Jas. L.
Hager, "was like unto parent and child." F. C.
Sherrill testified, in part, as to statements made by Jas. L.
Hager in reference to John D. Hager: "He has agreed to
live with me and take care of me and I am to give him what
property I have got." Bob Alley testified, in part:
"I am getting old and feeble and not able to work. I am
going to give him what I have out there to keep me." Joe
Graham testified, in part: "That they went in halves on
the Washam place and that he wanted Johnsie to live with him
*** said that he was going to give him the property that he
had left to take care of him and wait on him." Anne Bell
Hager testified, in part: "We were discussing a neighbor
who had died and left his property without a will. We were
discussing that on the porch with one of the neighbor boys,
and after Uncle Jim and I went back in the house Uncle Jim
made the remark: 'What a pity this man didn't leave a
will;' that that was one thing that he intended to do,
and that he intended to will it to Johnnie, because he had
agreed to, because Johnnie had helped take care of him and
would take care of him the rest of his life. *** He was just
one of the family and very near and dear to all of us."
There
was other evidence to like effect and corroborative. We think
there is sufficient definite and certain evidence to show a
contract.
At the
close of plaintiff's evidence and at the close of all the
evidence, the defendant made motions for judgment as in case
of nonsuit. C. S. § 567. The court below overruled these
motions and in this we can see no error. The plaintiff relied
on the contract as set forth in his complaint, and the
evidence was sufficient to sustain the contract, and the jury
so found.
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