Pepper v. Harris
| Decision Date | 30 June 1875 |
| Citation | 73 N.C. 365 |
| Court | North Carolina Supreme Court |
| Parties | WM. R. PEPPER v. CEBURN L. HARRIS and A. W. SHAFFER. |
*1 Where A and B purchased of C certain personal property by parol contract, and A executed a paper writing promising to pay C upon certain conditions therein contained, and the amount A had to pay was left blank and never inserted in said writing: Held, that the said written contract was of no force on account of such blank; and that the Court below erred in ruling that C was put to his election, either to sue B upon his parol contract of purchase, or to sue A upon the written contract.
This was a CIVIL ACTION, to recover the value of certain personal property alleged by the plaintiff to have been sold by him to the defendants, tried before Henry, J. at January (Special Term, 1875, of the Superior Court of WAKE county.
The defendant, Shaffer, filed an answer denying his liability to the plaintiff. The defendant, Harris, filed an answer admitting that he had contracted to purchase of the plaintiff the property mentioned in the complaint, but averred that the contract was in writing and contained certain conditions precedent, which had not been performed by the plaintiff, and insisted that no cause of action had accrued against him. A copy of the writing referred to is annexed hereto, marked “A.”
The plaintiff filed a replication alleging that the paper writing referred to had been prepared as containing the contract between the parties, and that the conditions contained therein referred to certain liens existing, upon a tract of land in Halifax county, contracted to be sold by plaintiff to the defendants. The defendants had abandoned the contract of purchase of said lands and by reason thereof the conditions became of no importance to the defendants, and the written contract had never been completed.
The plaintiff further alleged that he had performed the conditions, and that if he had not discharged the same, but was bound to perform the said conditions, the defendants had not been in any wise injured by their non-performance.
The plaintiff being introduced as a witness in his own behalf was proceeding to speak of the contract as a contract between himself and the defendants, when the counsel for the defendants interposed and asked the witness if the contract had been reduced to writing and was embodied in the paper marked “A,” which was then produced; except that the blank had not been filled with the amount representing the value of the property. Whereupon the defendants objected to plaintiff being allowed to give oral evidence of the contract except to fix the value of the property, and in support of their objection produced the paper “B,” of which a copy is annexed.
The execution of this paper by the plaintiff was admitted, and to meet the objection of the defendants the plaintiff insisted:
1. That paper “A” being an instrument under seal was in no sense a complete instrument until perfected by the proper ascertainment of the value of the property, and an insertion of that value when ascertained, and that a delivery of such an instrument was conditional, and the sum of the value never having been inserted, the execution had never been completed and the contract had not been in legal intendment reduced to writing.
*2 In this connection the counsel for the plaintiff proposed to ask the witness, “if the paper “A” had been delivered to him by Harris as a complete instrument, or with an understanding that it should thereafter be completed by the ascertainment and the insertion of the value of the property. The question was overruled by the Court on the ground that the witness had already answered it in the affirmative. To the ruling of his Honor the plaintiff excepted.
2. That in any view of the case it was competent to show, that although the contract was taken in the name of Harris alone, the defendant, Shaffer, was equally concerned and liable, and that the defendant Harris was in fact acting in the matter as agent for the defendant Shaffer, as well as for himself.
The Court sustained the defendants and held that the plaintiff should proceed against the defendant Harris alone, upon the written contract, or against Shaffer upon the verbal contract, or he would instruct the jury “that the contents of the paper “A” amounted to a variance between the allegations and the proof.”
The plaintiff thereupon submitted to a non-suit and appealed.
The following is a copy of the paper writing referred to:
For value received I promise to pay to William R. Pepper or order the sum of ____ dollars, when the said Pepper shall have...
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Huttig v. Brennan
... ... Cole, 103 Mo. 70; Mason v ... Griffith, 281 Ill. 246; Page on Contracts, sec. 2153; ... Atkins v. School District, 77 Ind. 447; Pepper ... v. Harris, 73 N.C. 365; L. & C. Railroad v ... Boykin, 76 Ala. 560; Bluemner v. Garon, 120 ... A.D. 29; 13 C. J. 308. (b) The so-called ... ...
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Huttig v. Brennan
...v. Cole, 103 Mo. 70; Mason v. Griffith, 281 Ill. 246; Page on Contracts, sec. 2153; Atkins v. School District, 77 Ind. 447; Pepper v. Harris, 73 N.C. 365; L. & C. Railroad v. Boykin, 76 Ala. 560; Bluemner v. Garon, 120 App. Div. (N.Y.) 29; 13 C.J. 308. (b) The so-called contract, in the for......
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State v. Racine Sattley Co.
...it cannot be enforced. Such is the effect of the decisions cited by appellee, viz.: Morris v. Bank, 67 Tex. 602, 4 S. W. 246; Pepper v. Harris, 73 N. C. 365; Atkins v. School Trustees, 77 Ind. 447. In the Indiana case suit was brought on written contract for the employment of a school teach......
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Boutten v. Wellington & P.R. Co.
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