Peyton v. Griffin

• Decision Date: 06 June 1928
• Docket Number: 569.
• Citation: 143 S.E. 525,195 N.C. 685
• Parties: PEYTON v. GRIFFIN et al. YOUNG v. SAME.
• Court: North Carolina Supreme Court

143 S.E. 525

195 N.C. 685

PEYTON v. GRIFFIN et al.

YOUNG v. SAME.

No. 569.

Supreme Court of North Carolina

June 6, 1928

Appeal from Superior Court, Buncombe County; Moore, Judge.

Actions by Wythe M. Peyton against William Ray Griffin and another and by Don C. Young, receiver, against William Ray Griffin and another, which actions were consolidated and tried together. From the judgment, defendants appeal. Affirmed.

See also, 143 S.E. 528.

In action on notes for agent's commission, evidence of agent's fraud in pointing out boundaries of land sold to defendant held insufficient for jury.

The evidence tended to show that Roberts and Sumner owned certain land in Henderson county, containing about 486 acres; the Roberts tract containing 173 acres, and the Sumner tract 313 acres. These two landowners had given an option on their property to one R. E. Burton. The price named in the option for the Roberts land was $600 per acre, and for the Sumner land $100 per acre. On or about the 7th of October, 1925, the plaintiff, Peyton, at a meeting of the Kiwanis Club, of which the defendant William Ray Griffin was a member, stated that the reason that he was late at the meeting was because of the fact that he had been out showing "a wonderfully beautiful tract of land that afternoon, or had been out to see it, and told of its beauty being almost unsurpassed." This statement was not made to the defendant particularly but to all members present. After the meeting, the defendant Griffin intimated to the plaintiff Peyton that he might be interested in the purchase of the property. It was agreed that they would visit the property the next morning. The plaintiff and the defendant Griffin went out to view the land according to agreement. The defendant, in relating the conversation upon the land with respect to its boundaries, said:

"I asked Mr. Peyton if it goes over that mountain, and he said 'It goes half way up, and it goes around still further four or five degrees from that particular point, I guess, and it reached almost to the top of the mountain and came down to the beginning, which is further up there perhaps a half mile.' *** The land that he pointed out to me lay in a compact body. *** As to my knowledge of that land as to how it lay at the time we closed the deal outside of the information I had gotten from Peyton, I took his word for it. He took me there and showed me the land, and pointed out the boundaries definitely to me. I had not been on the land with any other person before I made the contract with him, and had no information about the lay of the land, as to where it was except what I got from him. I drove out there three or four times passing by, and talked to Mr. Roberts about it, but was not concerned about the boundaries any way at all, because I knew that I knew the boundaries if Peyton told me the truth, and I presumed he had. *** I did not ask information from Mr. Roberts or any other person as to how the land lay, because I thought I knew about it. I thought I knew because Peyton showed it to me and pointed it out definitely. *** Wythe Peyton pointed out the lands as we could see it. He pointed it out on the mountain, three-quarters of a mile away. He pointed where the boundary line went. Pointed where the boundary line went three-quarters away, and said it went half way up the mountain. *** He pointed out the improper location of the Roberts tract. *** All I was concerned about was in the profits I would make, about the land I was to get, but I knew if the men pointed them out correctly. It makes no difference that I know that Mr. Peyton told me that he had not been on the land prior to the day before he took me there. He pointed them out to me. It makes no difference that I know of all that he knew about it was that he said Mr. Burton told him about it when he put the land in his hands the day before, and that I knew that he had not been in three-quarters of a mile of the land. He pointed out to me where the boundary lines were."

Thereafter on or about January 9, 1926, the defendants received a deed for the property directly from Roberts and Sumner, and executed deeds of trust to the owners to secure the balance of the purchase money, and also executed certain notes payable to Burton, the owner of the option, for profit or commissions in making the sale. Some of these notes were transferred by Burton to the plaintiff, and one of the notes so transferred is the basis of the present action. Under the agreement, the defendant was to pay the sum of $380 per acre for all the land owned by both Roberts and Sumner. There is no suggestion that the description of the land in the deed from the owners, to wit, Roberts and Sumner, to the plaintiff was defective, or did not disclose the correct boundaries of the land. The defendant, however, testified that in April, 1926, he received a map of the land, and discovered for the first time that the Sumner land crossed the mountain and was practically worthless for development purposes. Upon making this discovery, the defendant went to see the plaintiff, Peyton, and Peyton stated that "he was sorry; that the land was not what he thought it was. I asked him what he was going to do about it. and he said he 'couldn't do anything."' The defendant William Ray Griffin, who conducted the negotiations for the purchase, was an intelligent man, and had bought and sold several tracts of land in and about Asheville. The defendant admitted the execution of the note, and pleaded fraud, and...