Lewis v. Murray

• Citation: 97 S.E. 750,177 N.C. 17
• Decision Date: 03 January 1919
• Docket Number: 285.
• Parties: LEWIS v. MURRAY.
• Court: United States State Supreme Court of North Carolina

97 S.E. 750

177 N.C. 17

LEWIS v. MURRAY.

No. 285.

Supreme Court of North Carolina

January 3, 1919

Appeal from Superior Court, Robeson County; G. W. Connor, Judge.

Action by D. B. Lewis against J. P. Murray. Judgment of nonsuit, and plaintiff excepts and appeals. Error certified, that case may be submitted to jury on appropriate issues.

The action is to enforce specific performance of a contract to sell land on the following paper writing signed by defendant:

"Barnesville N.C. 10--18--1917.

Received on account of trade on home place, $100.00, one hundred dollars, from D. B. Lewis.

J. P Murray.

Witness W. C. Walters."

There was accompanying evidence on the part of plaintiff tending to show that plaintiff, on the 18th of October, 1917, bought the place on which defendant lived, and where he had lived for 15 years past, for $1,600, and paid him $100 on the purchase price, and, taking the receipt as above set out, had been ready and able to pay balance of amount, and told defendant this, who said he would have the deed drawn in a few days, but later had failed and refused to comply further. There was further evidence on part of plaintiff, tending to identify the place, and that it was known and called the home place. There was also evidence to the effect that, while defendant owned two other tracts of land in the county, a 50 and a 70 acre tract, he had never lived on either, and this place was a piece of land in Barnesville, Robeson county, N. C., bought by defendant of R. R. Barnes and was the home place as referred to and described in the deed.

Defendant, in his answer, denied any obligation to convey the property, and insisted that there was no contract in writing as required by the statute, and alleged a tender and refusal of the $100.

At the close of the testimony, the court being of opinion that no sufficient contract or memorandum had been shown, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

McLean, Varser & McLean, of Lumberton, for appellant.

McIntyre, Lawrence & Proctor, of Lumberton, for appellee.

HOKE J.

The portion of our statute of frauds applicable to executory contracts to sell and convey land (Revisal, § 976) provides that these and certain other contracts specified therein "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." In various decisions construing the statute it is held that the "party to be charged" is the one against whom relief is sought, and, if the contract is sufficient to bind him, he can be proceeded against, though the other could not be held, because as to him the statute is not sufficiently complied with. As expressed in Mizell, Jr., v. Burnett, 49 N.C. 249, 69 Am. Dec. 744:

"Under the statute of frauds a contract, in writing, to sell land, signed by the vendor, is good against him, although the correlative obligation * * * to pay the price is not in writing, and cannot be enforced against him [the purchaser]."

Again, it is held that, where the action is against the vendor, it is not required, for the validity of the contract, that the consideration appear in the writing. This position, a departure from the English decisions on the subject, was approved and sustained in a learned and notable opinion by Chief Justice Ruffin, in Miller v. Irvine, 18 N.C. 103, and has since been accepted with us as the correct interpretation of the law. Subject to these rulings, it is recognized that the written contract or memorandum must contain expressly or by necessary implication the essential features of an agreement to sell, and it must describe the land with reasonable certainty, affording data in itself or by reference to some other written paper that will enable the court, with the aid of extrinsic evidence, to identify the property, the subject-matter of the contract. Bateman v. Hopkins, 157 N.C. 470, 73 S.E. 133, Ann. Cas. 1913C, 642; Farmer v. Batts, 83 N.C. 387.

Applying these principles, we are of opinion that the paper writing declared on is in full compliance with the statutory requirements. The party to be charged in this instance being the vendor, the consideration, as we have seen, need not be stated. The words clearly import that there was a contract for the sale of the vendor's home place to plaintiff. This is not only a permissible and accepted definition of the word "trade" in a transaction of this character ( May v. Sloan, 101 U.S. 231, 25 L.Ed. 797; 8 Words and Phrases, p. 7037), but such an interpretation is put beyond question by the language in which it is expressed:

"Received on account of trade on home, $100.00, from D. B. Lewis.

[Signed] J. P. Murray"

--language fully as significant of a contract of sale between the parties as that upheld in the well-considered case of Bateman v. Hopkins, supra, and Manufacturing Co. v Hendricks, 106 N.C. 485, 11 S.E. 568, and approved as sufficient against the vendor in Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104, 107 Am. St....