Pappas v. Crist
| Decision Date | 02 June 1943 |
| Docket Number | No. 742.,742. |
| Citation | 223 N.C. 265,25 S.E.2d 850 |
| Parties | PAPPAS. v. CRIST et al. |
| Court | Georgia Supreme Court |
Appeal from Superior Court, Orange County; W. J. Bone, Judge.
Action by Michael Pappas against Gus Crist and others for breach of a contract to lease a portion of a building to plaintiff and another. From a judgment of dismissal after defendants' motion for nonsuit was allowed, plaintiff appeals.
Reversed.
This was an action to recover damages for breach of contract to lease a portion of a building to the plaintiff.
The plaintiff, a resident of Orange County, alleged and offered evidence tending to show that in February 1941 he and defendant Gus Crist entered into an agreement with defendants, Ketchum, Petteway and Thompson (hereinafter called lessors), to lease on completion a portion of a building then being erected by them in Jacksonville, North Carolina. The terms of the lease were agreed upon, a memorandum thereof was signed by the lessors, and the plaintiff made an advance payment of $25. Thereafter plaintiff incurred additional expense in making arrangements for occupying the premises. In May 1941, shortly before the completion of the building, plaintiff learned that the lessors had executed a formal lease for five years on the premises to Gus and Harry Crist, and that this lease had been registered.
The defendants admitted the material facts, and alleged that, relying upon the false representation of Gus Crist that the plaintiff had surrendered his interest in the first agreement, they had executed and delivered to Gus and Harry Crist a five-year lease of the premises, and they offered evidence tending to show that after they learned of the falsity of the representations upon which they had acted they obtained cancellation of the lease and tendered possession of the premises to the plaintiff, who failed and refused to accept the same or to go on with the lease. Subsequently they renewed the lease to Gus and Harry Crist who are now in possession.
Defendants' motion for nonsuit at the close of plaintiff's evidence was denied. But upon renewal of the motion at the close of all the evidence the motion was allowed, and judgment was entered dismissing the action. Plaintiff appealed.
L. J. Phipps, of Chapel Hill, for plaintiff.
John D. Warlick, of Jacksonville, for defendants W. L. Ketchum, J. C. Petteway and J. C. Thompson.
Albert J. Ellis, of Jacksonville, for defendant Gus Crist.
The admissions in the pleadings and the evidence, in the main uncontradicted, reduce the inquiry to a narrow compass. It was established that defendants, owners of a building, entered into an agreement with the plaintiff to lease to him and another certain premises then nearing completion, and that the plaintiff made the advance payment required. A written memorandum of the agreement was signed by the lessors. Subsequently, without the knowledge of plaintiff, the lessors executed and delivered a formal lease conveying the premises to others for the term of five years, and this lease was duly recorded. The plaintiff offered evidence that he had incurred expense in addition to the advance payment in preparation for occupation of the premises, and had suffered damages in other respects. Thus far the plaintiff's evidence went, and no farther. The motion for judgment of nonsuit was properly denied. The plaintiff had made out a prima facie case.
The defendants, lessors, thereupon offered evidence tending to show that though they had executed the lease conveying the premises to Gus and Harry Crist for a term of five years, they had done so in consequence of the false representation made to them by Gus Crist that the plaintiff Pappas had surrendered his interest in the first agreement, and that upon discovery of the falsity of this representation they had remedied the error into which they had unwittingly fallen by procuring cancellation of the lease, and had tendered possession of the premises to the plaintiff in accord with the terms of the agreement sued on, and plaintiff had failed to accept their offer.
At the close of all the evidence defendants' renewed motion for judgment of nonsuit was allowed. While the defendants' evidence, if accepted, would appear to constitute a defense, neither in his pleading nor in his testimony does the plaintiff admit those facts, and hence the defendants' evidence could not be considered on a motion for nonsuit. Under the rule only the plaintiff's evidence can be considered, and that in the most favorable light for him. Yokeley v. Kearns, N.C, 25 S.E.2d 602; Newby v. Atlantic Coast Realty Co, 182 N.C. 34, 41, 108 S.E. 323. As was said in Harrison v. North Carolina R. Co, 194 N. C. 656, 140 S.E. 598, 600, "In considering the last motion, (for nonsuit), the defendant's evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff's evidence, it may be used to explain or make clear that which has...
To continue reading
Request your trial
-
Bundy v. Powell
...on a motion for nonsuit, the court does not pass on the credibility of the witnesses or the weight of the testimony. Pappas v. Crist, 223 N.C. 265, 25 S.E.2d 850; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330; Alexander v. Southern Public Utilities Co, 207 N.C. 438, 177 S.E. 427. It takes it fo......
-
Bundy v. Powell
... ... In ruling on a motion for nonsuit, the court does not ... pass on the credibility of the witnesses or the weight of the ... testimony. Pappas v. Crist, 223 N.C. 265, 25 S.E.2d ... 850; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330; ... Alexander v. Southern Public Utilities Co., 207 N.C ... ...
-
Rice v. City of Lumberton
...v. Powell, 221 N.C. 415, 20 S.E.2d 561; Gregory v. Travelers Ins. Co., 223 N.C. 124, 25 S.E.2d 398, 147 A.L.R. 283; Pappas v. Crist, 223 N.C. 265, 25 S.E.2d 850; State v. Oldham, 224 N.C. 415, 30 S.E.2d 318; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Buckner v. Wheeldo......
-
Tillis v. Calvine Cotton Mills, Inc.
...his damages at once, provided the renunciation covers the entire performance to which the contract binds the promisor. Pappas v. Crist, 223 N.C. 265, 268, 25 S.E.2d 850; Edwards v. Proctor (Proctor v. Edwards), 173 N.C. 41, 43-44, 91 S.E. 584. Tillis gave testimony of a contract, breach the......