Paddock v. Davenport
| Decision Date | 23 December 1890 |
| Citation | 12 S.E. 464,107 N.C. 710 |
| Court | North Carolina Supreme Court |
| Parties | Paddock. v. Davenport. |
Specific Performance—Sale of Standing Trees —Breach of Contract—Damages.
1. Where, within the 60 days during which defendant, in writing, gave plaintiff the exclusive privilege of buying at a certain;price all the trees on defendant's land which plaintiff might select and mark, plaintiff, before a withdrawal by defendant, offers to pay the price, and mark the trees, defendant's offer becomes a binding contract, for the breach of which he is answerable in damages.
2. Where such trees are bought with a view to their severance from the soil, and thus being converted into personalty, and there are no circumstances from which it can be inferred that breach of the contract may not be readily compensated for in damages, specific performance will not lie.
Appeal from superior court, Clay county.
Action for specific performance and damages based on a contract by which defendant, Davenport, gave plaintiff the exclusive privilege for GO days of buying at a certain price all the trees on said defendant's land which plaintiff might select and mark. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.
E. B. Norvell, for appellant.
Batchelor & Dererenx, for appellee.
Shepherd, J. Two causes of action are set out in the complaint, —one for damages for breach of the contract, and the other for its specific performance. The court held, upon demurrer, that neither of the said causes of action could be maintained.
1. As to the cause of action against the defendant, Davenport, we think that there was error in the ruling that the contract for the sale of the trees was void for want of consideration The paper writing sued upon is substantially an offer to sell the trees at a certain price within 60 days. There being no consideration for the offer, it could have been withdrawn at any time within the period mentioned before acceptance by the plaintiff. The offer, however, was not so withdrawn, and, the plaintiff having accepted it within the stipulated time, it became a binding contract, for the breach of which the said defendant is answerable in damages. 1 Benj. Sales, 50, and the numerous cases cited in the notes. The offer of the plaintiff to pay the price, and mark the trees, and the refusal of Davenport to receive the money, and to allow the trees to be marked, was sufficient, in our opinion, to constitute a valid acceptance. There was, therefore, error in the ruling as to this cause of action.
2. The second cause of action is for specific performance, both against Davenport, who executed the contract, and Thrash, who purchased of him with notice of the claim of the plaintiff. The true principle upon which specific performance is decreed does not rest simply upon a mere arbitrary distinction as to different speciesof property, but it is founded upon the inadequacy of the legal remedy by way of pecuniary damages. This principle is acted upon (1) where there is a peculiar value attached to the subject of the contract which is not compensable in damages. The law assumes land to be of this character "simply because, " says Pearson, J., in Kitchen v. Herring, 7 Ired. Eq. 191, "it is land, —a favorite and favored...
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