Johnson v. Metropolitan Life Ins. Co.

• Decision Date: 30 April 1941
• Docket Number: 381.
• Citation: 14 S.E.2d 405,219 N.C. 445
• Parties: JOHNSON v. METROPOLITAN LIFE INS. CO.
• Court: North Carolina Supreme Court

14 S.E.2d 405

219 N.C. 445

JOHNSON v. METROPOLITAN LIFE INS. CO.

No. 381.

Supreme Court of North Carolina

April 30, 1941

Civil action to recover damages for breach of contract to convey real property.

In 1930 John Duncan Leach, et al., being the owners of a certain tract of land in Lenoir County, borrowed $5,000 from the defendant. The loan was evidenced by note and secured by trust deed upon the premises. Default having been made in the payment of the instalments maturing upon the loan, the substituted trustee, on demand of the defendant, foreclosed the trust deed. The defendant became the purchaser at the foreclosure sale and received foreclosure deed for the premises dated April 3, 1933. On May 5, 1933, defendant executed and delivered to the plaintiff a paper writing designated as an "earnest money contract of sale" in which defendant contracted to convey the locus in quo to plaintiff on certain conditions and provided the defendant was successful in acquiring title to the farm. It was also agreed that the defendant would give possession to the plaintiff "on the 15th. day of May, 1933, or so soon thereafter as possession can be obtained".

The original owners, after the foreclosure, refused to surrender possession of the premises. Thereupon, on July 18, 1933, this defendant instituted an action in ejectment against Leach, et al. The plaintiff herein became a party plaintiff in that action. The defendants therein answered, attacking the validity of the foreclosure and praying that same be annulled. This action resulted in a verdict and judgment for the defendant and the foreclosure sale was set aside and vacated.

On September 5, 1933, defendant executed and delivered to plaintiff a contract to convey the locus in quo to plaintiff by deed of special warranty, upon the terms and conditions therein set out, and to furnish at the time of the execution of the deed, abstract of title showing a fee simple title in the defendant herein. This contract superseded all prior agreements.

On December 22, 1936, Leach, et al., original owners, instituted an action against the defendant and the original trustees in the deed of trust and the substituted trustees, to restrain foreclosure sale under said deed of trust. Subsequent thereto the indebtedness to defendant was adjusted.

After the judgment in the ejectment action was affirmed on appeal to this Court, the plaintiff herein tendered to the defendant the balance of the purchase money due under the contract of purchase and demanded deed. The defendant declined to accept the purchase money or to execute a deed in fee for said premises. Thereupon plaintiff instituted this action to recover damages for the alleged breach of said contract. Pending the trial the defendant repaid to the plaintiff so much of the purchase money, plus interest, as had been received by the defendant, in addition to all items which plaintiff had paid out for taxes and insurance, with interest thereon. This repayment was made under an order entered by Spears, J., "without prejudice to the rights of either party".

When the cause came on for trial issues were submitted to and answered by the jury in favor of the plaintiff. The Court below declined to sign judgment thereon tendered by plaintiff but in lieu thereof signed judgment for the defendant non obstante veredicto. Both plaintiff and defendant appealed.

F. E Wallace, T. J. White, Jr., and J. A. Jones, all of Kinston for plaintiff.

R. W Winston, Jr., of Raleigh, and Whitaker & Jeffress and John G. Dawson, all of Kinston, for defendant.

BARNHILL Justice.

A judgment non obstante veredicto, in effect, is nothing more than a belated judgment on the pleadings. Jernigan v. Neighbors, 195 N.C. 231, 141 S.E. 586; Art Bronze & Iron Works v. Beaman, 199 N.C. 537, 155 S.E. 166; Little v. Martin Furniture Co., 200 N.C. 731, 158 S.E. 490; Mac Millan Buick Co. v. Rhodes, 215 N.C. 595, 2 S.E.2d 699.

"At common law a judgment non obstante veredicto could be granted only when the plea confessed the cause of action and set up matters in avoidance which, if true, were insufficient to constitute either a defense or a bar to the action. It was entered only upon the application of the plaintiff, and never in favor of the defendant. Under the modern practice, it may be given for either party, but only when the party against whom the verdict was returned is entitled to judgment upon the pleadings. 33 C.J. 1178; Fowler v. Murdock, 172 N.C. 349, 90 S.E. 301; Baxter v. Irvin, 158 N.C. 277, 73 S.E. 882; Doster v. English, 152 N.C. 339, 67 S.E. 754; Shives v. Eno Cotton Mills, 151 N.C. 290, 66 S.E. 141". Jernigan v. Neighbors, supra.

A careful reading of the complaint discloses that the plaintiff has adequately alleged a contract of sale of the locus in quo and a breach thereof resulting in damages. Hence, the judgment below cannot be sustained for that the plaintiff has failed to state a cause of action.

The judgment itself discloses that this was not the theory upon which the Court acted. It provides in part as follows:

"The court is of the opinion that notwithstanding the verdict of the jury the plaintiff is entitled to recover only such portion of the purchase money as he has paid, plus interest thereon, and the items which he has paid out for taxes and insurance, with interest thereon. It was admitted by both parties that all of said moneys, with interest, had already been paid to the plaintiff under the terms of an order entered in this cause by Honorable Marshall T. Spears, Judge Presiding at the November Term, 1936, of this court, said order having been entered without prejudice to the rights of either party.

"Although the Court is of the opinion that plaintiff is entitled to recover the purchase money paid by him, plus interest and the other items as aforesaid, yet when said recovery is credited with the amount already received by plaintiff from defendant there is no balance left:

"It Is Now, Therefore, by the Court Ordered, Adjudged and Decreed that the plaintiff take nothing further by this action," etc.

It therefore, appears, affirmatively, that the Court...