Miller Et Ux v. Carolina Monazite Co

• Decision Date: 17 May 1910
• Court: North Carolina Supreme Court
• Parties: MILLER et ux. v. CAROLINA MONAZITE CO. et al.

68 S.E. 1

(152 N.C. 608)

MILLER et ux.

v.CAROLINA MONAZITE CO. et al.

Supreme Court of North Carolina.

May 17, 1910.

1. Frauds, Statute of (§ 153^*)—Pleading.

In an action on a contract for the sale of a mineral interest in land, a denial in the answer of the execution of the contract is sufficient to protect the defendant from liability under the statute of frauds, and he is not required to plead the statute specially.

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. § 367; Dec. Dig. § 153.*]

2. Appeal and Error (§ 662*) — Record — Conclusiveness.

A statement by the court in the record that there was no evidence of the execution of the contract sued on must be accepted as true by the appellate court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2851; Dec. Dig. § 662.*]

3. Frauds, Statute of (§ 115*)—Memorandum of Sale—Signatures—"Party to be Charged."

The vendee in a contract of sale is the "party to be charged" thereon, within the meaning of the statute of frauds, and he can plead such statute to defeat an action by the vendor on such contract.

[Ed. Note.—For other cases, see Frauds. Statute of, Cent. Dig. §§ 244-246; Dec. Dig. § 115.*

For other definitions, see Words and Phrases, vol. 7, p. 6513.]

Appeal from Superior Court, Burke County: M. H. Justice, Judge.

Action by Jesse Miller and wife against the Carolina Monazite Company and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

S. J. Ervin and J. M. Mull, for appellants.

Avery & Ervin, for appellees.

WALKER, J. This action was brought by the plaintiff to recover of the defendant the purchase money for certain mineral interests in the land which is described in the pleadings, and which the plaintiff alleges he contracted to sell to the defendant. It was contended by the latter that what the plaintiff alleges was the contract to sell the mineral interests was merely an option or a uni lateral contract, which was never signed nor executed by the defendant, and that the time limited in the option for the payment of the purchase money had expired. Whether it was an option or a contract to sell is not material to the decision of the question which was argued before us and which is presented by the record, as it appears in the statement of the case on appeal that no proof of the execution of the contract by the defendant was shown, nor attempted to be shown. As the defendant denied the execution of the contract, it was incumbent upon the plaintiff to introduce evidence to the effect that the contract had been signed by the defendant, as a denial of the execution of the contract in the answer was sufficient to protect the defendant from liability under the statute of frauds, and it was not necessary to plead the statute specially. Morrison v. Baker, 81 N. C. 76; Browning v. Berry, 107 N. C. 231, 12 S. E. 195, 10 L. R. A. 726; Haun v. Burrell, 119 N. C. 544, 26 S. E. 111; Winders v. Hill, 144 N. C. 614, 57 S. E. 456. At the close of plaintiff's evidence, the court, on motion of the defendant, ordered a judgment of nonsuit to be entered under the statute, upon the ground that the execution of the contract by the defendant had not been shown. In the case of Winders v. Hill, supra, we held that as the defendant had taken issue with the plaintiff, concerning the execution of the contract, by denying the allegation to that effect in the complaint, he could avail himself of the statute of frauds without...