Harvey v. Linker

• Citation: 40 S.E.2d. 202,226 N.C. 711
• Decision Date: 20 November 1946
• Docket Number: No. 392.,392.
• Parties: HARVEY et al. v. LINKER et al.
• Court: North Carolina Supreme Court

40 S.E.2d. 202

226 N.C. 711

HARVEY et al.

v.LINKER et al.

No. 392.

Supreme Court of North Carolina.

Nov. 20, 1946.

Appeal from Superior Court, Cabarrus County; J. H. Clement, Judge.

Action by R. P. Harvey and S. G. Star-nes, trading as Harvey & Starnes, and R. P. Harvey and S. G. Starnes against T. F. Linker and Fay C. Linker for specific performance of contract or option for the purchase of a tract of land. From a judgment of nonsuit, the plaintiffs appeal.

Judgment affirmed.

This is an action to enforce specific performance of an alleged contract or option for the purchase of a tract of land from the defendants. The option was dated 26 March, 1946, duly executed by the defendants and provided for the conveyance of the property upon payment of $6,270 in cash, on or before 26 May, 1946. The option as executed was not exercised. Thereafter the evidence tends to show that the defendant T. F. Linker agreed to reduce the price of the property to $5,000, and to give the plaintiffs until 15 July, 1946, to purchase the property.

The plaintiffs changed the original option to conform to the alleged agreement and added below the signatures of the defendants the following statement: "By permission of both parties, this option has been changed to the amount of $5,000.00, and the time extended to July 15, 1946." None of the parties signed the alleged option as amended.

Upon motion of defendants, judgment as of nonsuit was entered. The plaintiffs appeal, assigning error.

B. W. Blackwelder, of Concord, for plaintiffs.

Hartsell & Hartsell, of Concord, for defendants.

DENNY, Justice.

The plaintiffs concede that a contract for the sale of land must be in writing and signed by the party or parties to be charged therewith. But they insist the Court erred in granting defendant's motion for judgment as of nonsuit herein, and cite in support of their contention the cases of Alston v. Connell, 140 N.C. 485, 53 S.E. 292, and Johnson v. Noles, 224 N.C. 542, 31 S.E.2d 637. Both cases relate solely to the extension of the time for performance under the terms of the contract; and the extensions were requested before the expiration of the options and at the request and for the accommodation of the parties to be charged. Therefore they are not in point.

The defendants rely on the statute of frauds under their general denial of the contract as alleged. G.S. § 22-2; McCall v. Textile Industrial Institute, 189 N.C. 775, 128 S.E. 349; Miller v. Carolina Monazite Co., 152 N. C. 608, 68 S.E. 1; Winders v. Hill, 144 N.C. 614, 57 S.E. 466.

In the instant case it is not clear whether the alleged extension of time was granted before or after the expiration of the original option. Nevertheless, when the purchase price was changed it constituted a new contract, unenforcible unless signed...