Hedgecock v. Tate

• Decision Date: 22 April 1915
• Docket Number: (No. 363.)
• Citation: 85 S.E. 34,168 N.C. 660
• Court: North Carolina Supreme Court
• Parties: HEDGECOCK. v. TATE et al.

85 S.E. 34

168 N.C. 660

HEDGECOCK.

v.TATE et al.

(No. 363.)

Supreme Court of North Carolina.

April 22, 1915.

Appeal from Superior Court, Guilford County; Devin, Judge.

Action by J. M. Hedgecock against A. E Tate and others. From a judgment of nonsuit, plaintiff appeals. Affirmed.

This is a civil action, brought to recover damages for failure of the defendants to comply with the terms of an option. The following is a copy of the option:

"This agreement, made this 1st day of March, 1913, between A. E. Tate et al., administrators of Rev. J. B. Richardson, deceased, of Guilford county, and state of North Carolina, parties of the first part, and J. M. Hedgecock, party of the second part, witnesseth: That in consideration of the sum of $1.00 paid by the party of the second part to the parties of the first part, the receipt of which is hereby acknowledged, the said parties of the first part hereby agree, upon receipt of the sum of $100 per acre, under survey to be made on or before the 1st day of January, 1914, to sell and confirm to the said party of the second part at an option, and execute to him a deed in fee simple with the usual covenants of warranty, the following described property, to wit: All of the land lying west of the city of High Point, adjoining the lands of J. M. Hedgecock, E. T. Corbett, the Jones heirs, Frank Proctor, and W. P. Hedgecock and others. This tract is known as the Jones tract, and contains about 25 acres. This option is to be taken up on the 1st of August: Provided, J. M. Hedgecock sells his present farm. Otherwise, option to remain in full force until January 1, 1914.

"It is understood and agreed that, in case the party of the second part does not pay or tender to the parties of the first part the purchase price, one hundred dollars per acre aforesaid, on or before the date above limited, then this agreement shall be void.

"In witness whereof, said party of the first part hath hereunto set his hands and seals the day and year first above written. "[Signed] A. E. Tate, Adm'r. [Seal.] "J. B. Richardson Estate. [Seal.]''

John A. Barringer, of Greensboro, and T. H. Calvert, of Raleigh, for appellant.

W. P. Bynum, of Greensboro, and Roberson & Barnhardt, of High Point, for appellees.

BROWN, J. This case embraces two causes of action—one for specific performance against all the defendants; the other for damages for breach of contract against A. E. Tate, individually; both causes being based upon a certain option given to the plaintiff by A. E. Tate, as administrator of J. B. Richardson, deceased.

The plaintiff cannot enforce specific performance of the option, because there is nothing to show, in the first place, that the executors to the will of J. B. Richardson are given power to sell land. Even if they were vested with the power to sell land, it has been held that that does not give the executors any power to give an option to purchase. Trogden v. Williams, 144 N. C. 194, 56 S. E. 865, 10 L. R. A. (N. S.) 867.

The plaintiff is not entitled to recover on the other cause of action against the defendant Tate for damages, for the reason that it appears...