Mizell v. Burnett
| Decision Date | 30 June 1857 |
| Court | North Carolina Supreme Court |
| Parties | SOLOMON MIZELL, JR., v. JOSEPH H. BURNETT. |
Under the statute of frauds a contract, in writing, to sell land, signed by the vendor, is good against him, although the correlative obligation of the buyer to pay the price, is not in writing, and cannot be enforced against him.
Where the owner of timber trees, living in twenty-two miles of the vendee, offered, in writing, to sell said trees, provided the other would comply with certain terms, which were not complied with for twenty days, at the end of which time, performance of the precedent terms was offered and refused by the seller, who also refused to perfect the contract; Held, upon the ground, that the delay was unreasonable, that the plaintiff was not entitled to recover upon the written offer or agreement. A right depending upon a condition precedent, does not accrue unless the condition be performed, although the performance becomes impossible by the act of God.
ACTION of ASSUMPSIT, tried before his Honor, Judge ELLIS, at the Spring Term, 1857, of Washington Superior Court.
The defendant was the owner of a tract of land on the Roanoke river, called the Walling tract, on which there were growing a large number of white-oak trees, suitable for making staves. It appeared that the plaintiff and defendant being in treaty relative to the sale and purchase of these trees, the former, about 1st of February, 1853, went to examine them, and thence went to see the defendant, who lived at Williamston, Martin county. What then took place between the parties did not appear, except as may be gathered from the evidence thereafter arising. On the 14th of February, 1853, the defendant wrote to L. S. Webb, cashier of the Windsor Bank, who lived in the town of Windsor, about seven miles from the residence of the plaintiff, a letter, of which the following is a copy:
“WILLIAMSTON, Feb'ry 14th, 1853.”
In the letter to Mr. Webb, was enclosed the following letter of the same superscription and date, directed to the plaintiff:
Signed by defendant.
“P. S. I have enclosed the two notes to L. S. Webb for you to fill up.”
J. H. B.
“I will be at home Saturday next, or any day this week, or you can write to me what day you will come, and I will be here.
+------------------+
¦Signed,¦J. H. B.” ¦
+------------------+
The letter addressed to the plaintiff, with two blank notes, were, in a day or two, delivered to the plaintiff, who remarked, that he and defendant had made the trade as stated in the two letters. He said further, on the occasion, that he would have the notes signed, and return with them a letter from Mr. Webb as requested, or go over and deliver the notes to defendant.
On the 19th of February, in the same year, one Wynn called on the defendant and offered him one thousand dollars for the timber in question.
On 22nd of the same month, (Feb'ry) the defendant wrote to Mr. Webb as follows:
“WILLIAMSTON, 22d of February, 1853.”
Signed by the defendant.
This letter was received the day it was written. About twelve days after it was received, the plaintiff called on Mr. Webb, with the notes signed, and the latter gave him a letter to the defendant, stating that the notes were good beyond doubt. At the same time, Mr. Webb communicated to plaintiff the contents of the defendant's letter of the 22nd of February, not having had an opportunity of doing so sooner. The plaintiff, thereupon, stated as his reason for not returning sooner with the notes, that his wife had been very sick, and that there was, and had been, a freshet in the Roanoke river, which prevented him from getting over to Williamston. The plaintiff thence proceeded to visit the defendant at his residence, going a circuitous way to avoid the difficulties of the flood in the river. He lived in Bertie county, about twenty-two miles, by the usual route, from the defendant, the latter took the letter containing the notes, and having read them, returned the notes to the plaintiff, and put the letter in his pocket, refusing to make a title to the trees. No reason was given by him, at the time, for refusing to complete the trade, but as soon as the plaintiff left him, he put his refusal, upon the ground, that the notes were not good.
Mr. Webb testified that the notes were abundantly good. Shortly after this interview and tender, the defendant conveyed the timber trees to Wynn.
Defendant resisted the plaintiff's recovery,
1st. Upon the ground, that the evidence showed only a proposition on the part of the defendant to sell, but no acceptance of the terms previously to the sale to Wynn.
2nd. The defendant had the right, at any time, to withdraw his proposition before its acceptance by the plaintiff, and in his second letter to Mr. Webb, had done so.
3rd. The plaintiff did not tender the notes in a reasonable time.
4th. The contract was not written so as to comply with the statute of frauds.
The Court, by agreement, reserved the foregoing points.
The jury found a verdict in favor of the plaintiff for $200 with interest from the sale to Wynn, it being admitted that such was the proper amount of damages, if plaintiff was entitled to recover at all.
Afterwards the Court decided the questions reserved in favor of the plaintiff, and gave judgment on the verdict, from which defendant appealed to this Court.
Winston, Jr., for plaintiff .
Heath, fer defendant .
It was properly conceded that a contract to sell “growing trees” is within the statute of frauds, being a contract to sell “land or some interest in, or concerning the same.”
We are of opinion with his Honor, that to make a contract to...
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...especially at page 10 of 74 N. O., 21 Am. Rep. 484, where Rodman, J., states the rule; Miller v. Irvine, 18 N. C. 104; Mizell v. Burnett, 49 N. C. 249, 69 Am. Dec. 744; Rice v. Carter, 33 N. C. 298; Neaves v. Mining Co., 90 N. C. 412 ; Mayer v. Adrian, 77 N. C. 83. Many other cases could be......
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