Parker v. White
Decision Date | 11 June 1952 |
Docket Number | No. 450,450 |
Citation | 235 N.C. 680,71 S.E.2d 122 |
Court | North Carolina Supreme Court |
Parties | PARKER, v. WHITE et al. |
Simms & Simms, John M. Simms, Raleigh, for plaintiff appellant.
Smith, Leach & Anderson, Raleigh, for defendants appellees.
Does this action affect the title to real property? If it does, the judgment from which this appeal is taken would be in error. But if it does not, then the judgment is correct and should be affirmed. For the filing of the notice of the action, that is, lis pendens, is authorized only in actions affecting the title to real property. G.S. § 1-116. From a careful consideration and analysis of the various phases of the complaint, in the light of applicable principles of law, it seems apparent that the purpose of this action is to recover damages caused by fraud. Hence, error in the judgment is not made to appear.
Adams, J., in Leggett Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455; see also Berwer v. Union Central Life Ins. Co., 214 N.C. 554, 200 S.E. 1, and cases there cited, and also Hill v. Snider, 217 N.C. 437, 8 S.E.2d 202.
This principle applies to contracts and sales of both real and personal property. May v. Loomis, 140 N.C. 350, 52 S.E. 728; Tarault v. Seip, 158 N.C. 363, 74 S.E. 3; Evans v. Davis, 186 N.C. 41, 118 S.E. 845; Berwer v. Union Central Life Ins. Co., supra.
And a party who has been fraudulently induced to enter into a contract or sale has a choice of remedies. He may repudiate the contract, and, tendering back what he has received under it, may recover what he has parted with or its value; or he may affirm the contract, keeping whatever property or advantage he has derived under it, and may recover in an action for deceit the damages caused by the fraud. And, in a proper case, the defrauded party may be entitled to the equitable remedies of rescission and cancellation or reformation. But, as a general rule, the defrauded party cannot both rescind and maintain an action for deceit. If he elects to rescind the contract, he may recover back what he has parted with under it, but cannot recover damages for the fraud. On the other hand, if he elects to maintain an action for deceit, he cannot sue for rescission or reformation. Fields v. Brown, 160 N.C. 295, 76 S.E. 8; F. E. Lykes & Co. v. Grove, 201 N.C. 254, 159 S.E. 360; Smith v. Greensboro Joint Stock Land Bank, 213 N.C. 343, 196 S.E. 481.
But the defrauded party is not allowed to rescind in part and affirm in part,--he must do one or the other. May v. Loomis, supra; McNair v. Southern States Finance Co., 191 N.C. 710, 133 S.E. 85; Willis v. Willis, 203 N.C. 517, 166 S.E. 398; Bolich...
To continue reading
Request your trial-
Strickland v. Flue-Cured Tobacco Co-op.
...tobacco purchasers in part and affirm them in part. See King v. Continental Casualty Co., 110 F.2d 950 (4th Cir.1940); Parker v. White, 235 N.C. 680, 71 S.E.2d 122 (1952); see also Joyce v. Davis, 539 F.2d 1262 (10th Cir.1976). Although they seek restitution to Stabilization of rebate money......
-
Daniel Boone Complex, Inc. v. Furst
...property or advantage he as derived under it, and may recover in an action for deceit the damages caused by the fraud. Parker v. White, 235 N.C. 680, 71 S.E.2d 122 (1952). In the instant case, appellants have chosen to affirm the original loan transaction. Their complaints pray the court to......
-
Collier v. Bryant (In re Collier)
...the remedies are either to repudiate the contract or affirm the contract and recover damages caused by the fraud. Parker v. White, 235 N.C. 680, 688, 71 S.E.2d 122, 128 (1952). The plaintiff may elect one or the other but may not seek rescission and maintain an action for fraud. Id. However......
-
Keith v. Wilder
...plaintiff reasonably relied upon the representation, and acted upon it; and (6) that plaintiff thereby suffered injury. Parker v. White, 235 N.C. 680, 71 S.E.2d 122; Foster v. Snead, 235 N.C. 338, 69 S.E.2d 604; Vail v. Vail, 233 N.C. 109, 63 S.E.2d 202. A false representation is material w......