Hall v. Misenheimer

• Decision Date: 13 December 1904
• Citation: 137 N.C. 183,49 S.E. 104
• Court: North Carolina Supreme Court
• Parties: HALL v. MISENHEIMER.

49 S.E. 104

137 N.C. 183

HALL

v.MISENHEIMER.

Supreme Court of North Carolina.

Dec. 13, 1904.

VENDOR AND PURCHASER—STATUTE OF FRAUDS —MEMORANDUM OF SALE—SUFFICIENCY OF SIGNATURE—NECESSITY OF EXECUTION BY VENDEE—EXPRESSION OF PRICE—NECESSITY.

1. A receipt by the vendor of land, reciting that the vendee—naming him—had made a payment, the receipt having been drawn at the instance of the vendee, was sufficiently signed by the vendee to bind him under the statute of frauds.

2. Under Code, 8 1554, requiring a contract to sell land, or some note or memorandum thereof, to be put in writing and signed by the party to be charged therewith, the vendee cannot be held unless he has signed the required memorandum.

3. The doctrine that part performance of a sale of land takes it from within the statute of frauds is not recognized.¶ 3. See Frauds, Statute of, vol. 23, Cent Dig. § 289.

4. Code, § 1554, requires a contract to sell land, or some note or memorandum thereof, to be put in writing and signed by the party to be charged therewith. Held, that a memorandum of a contract for the sale of land is not good as against the vendee unless it shows the price to be paid.

Appeal from Superior Court, Rowan County; Justice, Judge.

Action by J. A. Hall against M. J. Misenheimer. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action by the vendor against the vendee for the specific performance of a contract to convey land, or, stating it in another way, to recover the price agreed to be paid for the land. The plaintiff testified that he agreed to sell the land to the defendant for $1,200, and the defendant, on the other hand, agreed to buy it at that price. That afterwards defendant presented to him a paper, and said: "The price is very high, but I will take the land. Here is a receipt that I have prepared; you sign it now, and I will pay you five dollars"—and the latter signedthe receipt, which is as follows: "Salisbury, N. C. Jan. 18, 1904. Received from M. J. Misenheimer five dollars, part payment on one five room house and lot, extending across Tar branch, on Boundary Street, No. house 630. [Signed] J. A. Hall. Witness: M. D. Lefier." The receipt was written by M. C. Ruffty for the defendant, and at his request and dictation. Plaintiff surrendered the premises to defendant, who took possession thereof, but afterwards refused to pay the purchase money, though plaintiff tendered a deed for the land on the 21st day of January, as defendant had requested him to do. Defendant alleges in his answer that he was to have until the 20th of January to decide whether or not he would take the lot, and he notified the plaintiff before the expiration of the time that he would not take it. At the close of plaintiff's testimony the court, on motion of defendant, nonsuited the plaintiff, who excepted and appealed.

Walter H. Woodson, for appellant.

Burton Craige and Walter Murphy, for appellee.

WALKER, J. (after stating the case). The argument in this court proceeded mainly upon the question whether there had been a sufficient signing of the receipt, under the statute of frauds, to bind the defendant. Upon this point our opinion is with the plaintiff. It has been held in England, whose statute (29 Car. II) has been substantially copied by us, that if the name of the party to be charged appears in the memorandum, so as to be applicable to the whole substance of the writing, and was written by the said party or by his authorized agent, it is immaterial where in the instrument the name happens to be placed, whether at the top or at the bottom, or whether it is merely mentioned in the body of the memorandum, the statute not requiring that the name should be subscribed. Evans v. Hoare, 1 Q. B. (1892) 593. The principle, as thus stated, has been adopted by Clark in his work on Contracts (2d Ed.) p. 89, and he cites numerous cases to sustain it To those he cites may be added Higdon v. Thomas, 1 Har. & G. 139. We think the same rule has been approved by this court in Plummer v. Owens, 45 N. C. 254, in which case it appeared that the names of the vendor and the vendee were written at the top of the memorandum, the latter being in the form of an account. The court held that the memorandum would have been sufficient in other respects if the description of the land had been more specific. See, also, Clason v. Bailey, 14 Johns. 484, and the other cases cited in Clark on Contracts (2d Ed.) p. 89, note 110. In our case, the name of the vendee was inserted in the paper by his own direction, and it cannot be questioned that he fully intended thereby to bind himself by the receipt as evidence of a contract to buy the land, so far as a signing of the writing was necessary for that purpose. Cherry v. Long, 61 N. C. 466, seems to be directly in point. It was not contended that the defendant was not bound by what his agent did in writing the receipt, though the latter's authority was given by parol. Neaves v. Mining Co., 90 N. C. 412, 47 Am. Rep. 529.

But we think there is a serious obstacle in the way of plaintiff's recovery. The statute expressly requires a contract to sell land, or some note or memorandum thereof, to be put in writing and signed by the party to be charged therewith, or by his lawfully authorized agent. Code, § 1554. In order, therefore, to charge a party upon such a contract it must appear that there is a writing containing, expressly 6r by implication, all the material terms of the alleged agreement, which has been signed by the party to be charged, or by his agent lawfully authorized thereto. Gwathney v. Cason, 74 N. C. 5, 21 Am. Rep. 484, especially at page 10, 74 N. C, 21 Am. Rep. 484, where Rodman, J., states the rule-Miller v. Irvine, 18 N. C. 104; Mizell v. Burnett, 49 N. C. 249, 69 Am. Dec. 744; Rice v. Carter, 33 N. C. 298; Neaves v. Mining Co., 90 N. C. 412, 47 Am. Rep. 529; Mayer v. Adrian 77 N. C. 83. Many other cases could be cited from our Reports in support of the rule, but those we have already mentioned will suffice to show what is the principle and how it has been applied. In commenting on the policy of the statute, so far as it affects the vendee, and answering a suggestion that the statute applies only to the vendor, who alone conveys the land or any interest therein, Ruffin, C. J., for the court, in Simms v. Killian, 31 N. C. 252, says: "The danger seems as great that a purchase at an exorbitant price may by perjury be imposed on one who did not contract for it, as that by similar means a feigned contract of sale should be established against the owner of the land. Hence the act in terms avoids entirely every contract of which the sale of land is the subject, in respect of a...