Lane v. Coe, 387

• Decision Date: 20 May 1964
• Docket Number: No. 387,387
• Citation: 136 S.E.2d 269,262 N.C. 8
• Court: North Carolina Supreme Court
• Parties: James W. (Jimmie) LANE v. Charlie S. COE and Wife, Lora V. Coe.

Page 269

136 S.E.2d 269

262 N.C. 8

James W. (Jimmie) LANE v. Charlie S. COE and Wife, Lora V. Coe.

No. 387

Supreme Court of North Carolina.

May 20, 1964

William E. Hall, Mocksville, for plaintiff.

No counsel contra.

MOORE, Justice.

This is a civil action for damages arising from an alleged breach of a contract to convey land. At the close of plaintiff's evidence the trial judge entered a judgment of involuntary nonsuit.

On 23 March 1963, after discussion on this and prior dates, plaintiff and defendant Charlie Coe signed the following memorandum or receipt:

'3-23-63. Received of Jimmie Lane One Hundred Dollars as a binder on house and lots on 601 highway where his residence is Bal. Eight Thousand and Nine Hundred Dollars and 1963 Pont. Conv. or 1963 Pont. Grand Prix eather one Perfered. Bal due when clear deed is maid if possible 3-26-63. S/Charlie Coe S/Jimmie Lane'

On 27 March 1963 defendants, Charlie Coe and wife, Lora V. Coe, conveyed the subject property to one Armand Daniel. Plaintiff instituted this action on 6 May 1963.

The complaint alleges in substance: On 23 March 1963 defendants owned certain lots (specified by number) of the 'Jacob Eaton Sub-Division' as shown on recorded map. On said date Charlie Coe 'for himself and as agent' for his wife signed the receipt or contract (set out above) and at that time was paid $100. In breach of the contract defendants conveyed the land to Armand Daniel. In apt time plaintiff offered on his part to comply with the contract, and was and still is ready, willing and able to comply. Plaintiff has been damaged in the sum of $2400.

Defendant Charlie Coe, answering, admits signing the receipt and thereafter conveying the land to Daniel, and avers: Certain of the lots were owned solely by Lora V. Coe and the rest by defendants as tenants by the entirety. He signed the receipt on condition that his wife would thereafter agree to convey on the terms stated. The action is barred by the statute of frauds for that the purported contract does not contain a sufficient description of the land.

Defendant Lora V. Coe filed a separate answer setting up the same defenses asserted by Charlie Coe and, additionally, denying that her husband was her agent in signing the contract, and declaring that she had no knowledge of the contract at the time of its execution.

Plaintiff testified that he operated a second hand car lot on U. S. Highway 601 about 3/4 of a mile south of Mocksville, defendants on 23 March 1963 lived 'across the street' from the car lot, he (plaintiff) prepared the receipt and male defendant signed it, and was paid $100. The contract (receipt) was admitted in evidence.

The following testimony of plaintiff was excluded over his objection: He (male defendant) said he would sell me 'all the land that he owned down there, which was a field behind the Phillips 66 station and his house and lots. He said there was 300 feet' of frontage on 601. 'I don't know how many feet' it goes back; 'I do know where the line is; he has showed me before.' He pointed it out to me. The field joins the lots the house is on; 'he said there was a 75-foot strip that he had sold off all but that which joined into the lot--to the field and the lot. He said (there were) approximately 11 acres more or less.' He pointed out the boundaries to me. 'I saw him again on * * * Monday night (March 25). He came into my office and said, 'I have been offered more money for my property; I won't let you have it unless you want to give me more money. I am going to give you your money back.' I said, 'Mr. Coe, as far as my part is concerned, I have already bought it.' * * * I saw him again on Tuesday and he told me I was not getting the property and that it had already been sold. . . . I was ready, willing and able to fulfill my part of the paper writing. Mr. Coe never offered to give me the One Hundred Dollars back again. On one occasion, I asked him for it and he just turned around and smiled and said 'Sue me.' I asked him for the One Hundred Dollars on other occasions and each time he refused.'

Evidence corroborative of the plaintiff's excluded testimony was ruled out. Testimony as to damages was also excluded. J. D. Furches testified: '* * * Mr. Coe said that neither he nor his wife owned any other property on #601 other than that which is contained in the paper writing.' This was also excluded, as was other evidence to the same effect.

Plaintiff concedes that the evidence offered by him, including that excluded by the court, fails to make out a prima facie case against defendant Lora V. Coe. He contends, however, that the court erred in its rulings on the admission of evidence and in allowing defendant Charlie Coe's motion for nonsuit.

It is apparent that the trial judge was of the opinion that the description in the written contract is insufficient as a matter of law and that it could not be aided by parol testimony.

The statute of frauds, G.S. § 22-2, provides that 'All contracts to sell or convey any lands * * * 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 * *.' A memorandum or note is, in its very essence an informal and imperfect instrument. Phillips v. Hooker, 62 N.C. 193. But it must contain expressly or by necessary implication the essential features of an agreement to sell. Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833; Keith v. Bailey, 185 N.C. 262, 116 S.E. 729; Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104. It must contain a description of the land, the subject-matter of the contract, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers. Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; Buckhorn Land & Timber Co. v. Yarbrough, 179 N.C. 335, 102 S.E. 630; Bateman v. Hopkins, 157 N.C. 470, 73 S.E. 133; Farmer v. Batts, 83 N.C. 387. If the description is sufficiently definite for the court, with the aid of extrinsic evidence, to apply the description to the exact property intended to be sold, it is enough. Lewis v. Murray, 177 N.C. 17, 97 S.E. 750; Simmons v. Spruill, 56 N.C. 9.

The most specific and precise descriptions require some proof to complete the identification of the property. More general descriptions require more. The only requisite in evaluating the written contract, as to the certainty of the thing described, is that there be no patent ambiguity in the description. Norton v. Smith, 179 N.C. 553, 103 S.E. 14. There is a patent ambiguity when the terms of the writing leaves the subject of the contract, the land, in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified with certainty. Gilbert v. Wright, 195 N.C. 165, 141 S.E. 577; Bryson v. McCoy, 194 N.C. 91, 138 S.E. 420. When the language is patently ambiguous parol evidence is not admissible to aid the description. Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759. The descriptions considered in the following cases are patently ambiguous and could not be aided by parol evidence: Boone v. Pritchett, 259 N.C. 226, 130 S.E.2d 288,--boundary description, but no designation of township, county, state or other geographical location; Manufacturing Co. v. Hendricks, 106 N.C. 485, 11 S.E. 568,--'thirty acres of land, being a portion of a tract of land formerly owned by Reuben Deaver', a designation by subsequent survey did not supply the deficiency; Murdock v. Anderson, 57 N.C. 77--'one house and lot, in the town of Hillsborough.' See also Baldwin v. Hinton, 243 N.C. 113, 90 S.E.2d 316; Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723.

A patent ambiguity raises a question of construction; a latent ambiguity raises a question of identity. If the ambiguity is latent, evidence dehors the contract is both competent and necessary. A description is said to be latently ambiguous if it is insufficient in itself to identify the property but refers to something extrinsic by which identification might possibly be made. In such case plaintiff may offer evidence, parol and other, with reference to such extrinsic matter tending to identify the property, and defendant may offer such evidence with reference thereto tending to show impossibility of identification, i. e., ambiguity. Gilbert v. Wright, supra. The following cases are illustrative: Carson v. Ray, 52 N.C. 609--'My house and lot in the town of Jefferson, in Ashe County, North Carolina' (it is not presumed that vendor had more than one lot, and if it be shown that he had more than one, it must be by extrinsic proof, and the case is then one of latent ambiguity, which may be explained by similar proof); Phillips v. Hooker, supra--'her house and lot north of Kinston'; Norton v. Smith, supra--'his entire tract or boundary of land consisting of 146 acres.' See also Lewis v. Murray, supra; Craven County v. Parker, 194 N.C. 561, 140 S.E. 155.

In the instant case the subject property is 'house and lots on 601 highway where his (Charlie Coe's) residence is.' In our opinion this description is not, as a matter of construction, one of patent ambiguity. It admits of the possibility of identification by evidence dehors the contract. If it be shown that Charlie Coe, at the time of the execution of the contract, resided in a house situate on lots located on highway 601, the lots are contiguous and compose the land and premises on which the house is, and the lots are defined and described by reference to a map, deed or fixed monuments, the description is sufficient. Descriptions in contracts referring to land as the place of...