Keith v. Bailey

• Decision Date: 04 April 1923
• Docket Number: 251.
• Citation: 116 S.E. 729,185 N.C. 262
• Parties: KEITH v. BAILEY.
• Court: North Carolina Supreme Court

116 S.E. 729

185 N.C. 262

KEITH v. BAILEY.

No. 251.

Supreme Court of North Carolina

April 4, 1923

Appeal from Superior Court, Wake County; Lyon, Judge.

Action by W. H. Keith against O. D. Bailey. Judgment for plaintiff and defendant appeals. Reversed, and action dismissed.

On April 12, 1920, S. A. Cannady and his wife executed a written agreement to convey to the plaintiff a tract of land containing 124 1/2 acres at the price of $6,250 to be paid as follows: $500 cash, $1,500 on December 15, 1920, $2,000 on December 15, 1921, and $2,250 on December 15, 1922. The deed was to be delivered when the plaintiff paid the last installment. Thereafter the defendant entered into negotiations with the plaintiff for the purchase of the land and caused to be prepared the following paper which was signed by the plaintiff and his wife on June 12, 1920:

"This is to certify that I, W. H. Keith, for and in consideration of $5 have agreed to sell to O. D. Bailey the Rat Cannady home place in Wake county, bought by me at public auction for the sum of $8,250. I agree to sell to O. D. Bailey the whole Cannady tract of land. This the 12th day of June 1920."

The defendant did not take possession of the land, but wrote two letters in October and one in November, informing the plaintiff he was "going to ask off from their land trade," and returned to the plaintiff the paper dated 12th of June. The plaintiff then brought suit to recover damages for the defendant's failure to comply with his contract, and at the trial defendant offered no evidence, and moved for judgment of nonsuit upon the evidence introduced by the plaintiff. The motion was denied, and the defendant excepted. The verdict was as follows:

(1) Did the defendant agree to buy the land from plaintiff at the price of $8,250, as alleged in the complaint?

Ans.: Yes.

(2) Did defendant break said contract?

Ans.: Yes.

(3) What damage, if any, is plaintiff entitled to recover?

Ans.: $700.

Judgment was rendered for the plaintiff, and the defendant appealed.

C. A. Hall, of Roxboro, for appellant.

J. M. Broughton, of Raleigh, for appellee.

ADAMS J.

All contracts to sell or convey lands, or any interest in or concerning them, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized. C. S. § 988.

The defendant, who is the party to be charged (Hall v. Misenheimer, 137 N.C. 184, 49 S.E. 104, 107 Am. St. Rep. 474), contends that he signed no memorandum or note in contemplation of the statute; that the contract to which the plaintiff testified at the trial was not reduced to writing; that he was under no legal obligation to purchase the land; and consequently that he is not liable in damages ( Burriss v. Starr, 165 N.C. 657, 81 S.E. 929, Ann. Cas. 1914D, 71; Boger v. Lumber Co., 165 N.C. 557, 81 S.E. 784, Ann. Cas. 1917D, 116; Richards v. Lumber Co., 158 N.C. 56, 73 S.E. 485, Ann. Cas. 1913D, 313; Hall v. Misenheimer, supra; Gwathmey v. Cason, 74 N.C. 6, 21 Am. Rep. 484).

In our estimate of the circumstances disclosed by the evidence, it is unnecessary to consider the questions whether the defendant "signed" the memorandum, and, if he did, whether it contains his implied promise to pay the purchase money; for, if these contentions be admitted, there is another conclusive reason why the plaintiff cannot maintain his action.

The alleged contract between the plaintiff and the defendant cannot be enforced unless it complies with the statute of frauds. It is a rule of general, if not universal application that the memorandum of a contract to convey or to purchase land shall be reasonably certain and definite in its terms, so that the substance and essential elements may be...