Phillips v. Hooker

• Decision Date: 30 June 1867
• Court: North Carolina Supreme Court
• Parties: JOHN R. PHILLIPS v. ELEANOR HOOKER.

62 N.C. 193

JOHN R. PHILLIPS

v.ELEANOR HOOKER.

Supreme Court of North Carolina.

June Term, 1867.

*1 A memorandum of a contract to convey the land of a principal, signed by an agent in his own name, is a compliance with the statute of frauds, if it be expressed that the contract was made for the principal.

Such a memorandum setting forth that the agent agreed for “Mrs. H. to make a deed for her house and lot north of Kinston,” to the plaintiff, is not void as being too vague and indefinite--it being admitted by Mrs. H., (the defendant,) in her answer, that she owned but one house and lot in the county, and that the agent had been authorized to sell her house and lot; and she is bound to convey in fee simple.

The fact that the consideration of an agreement (made in 1862,) was Confederate Treasury Notes does not invalidate it; contracts upon such consideration being ratified by an ordinance of the Convention, (Ordinances of 1865, p. 56,) and chs. 38 and 39 of the Acts of Assembly of 1866, which do not conflict with the Constitution of the United States.

By Pearson, C. J. In 1862 Confederate treasury notes being the only circulating medium in the State, ordinary dealings in them were not accompanied with criminal intent to aid the rebellion, and were therefore not illlegal and void. This rule applies to executory as well as executed contracts.

By Reade, J. A contract is not void merely because there is something immoral or illegal in its surroundings or connections; Therefore, the issuing of Confederate treasury notes was illegal, but the use of them after they were issued, was not illegal.

( Oliver v. Dix, 1 Dev. & Bat. Eq. 158; Mallory v. Mallory, Bus, Eq. 80; Davis v. Cain, 1 Ire. Eq. 304, President &c. of D. & D. Inst. v. Norwood, Bus. Eq. 65, cited and approved.)

BILL for specific performance, filed to Spring Term, 1867, of the Court of Equity for LENOIR, and then set for hearing upon bill and answer, and transferred to this court.

The plaintiff by his bill sought to enforce the specific execution of a contract for the purchase of a house and lot from the defendant. The contract was alleged to have been made with an agent of the defendant, in the following terms expressed in writing: “State of North Carolina, Lenoir County. This agreement, entered into between me, Amos Harvey of the first part, and John R. Phillips of the second part, all of the county of Lenoir, witnesseth, for and in the consideration of the sum of twenty five hundred dollars to me in hand paid, I, the said Harvey, do agree for Mrs. Hooker, to make a deed for her house and lot north of Kinston, to the said John R. Phillips. This 13th December, 1862. Signed, sealed in presence of L. H. Alredge. Amos Harvey.” The bill described the house and lot as being situate formerly near, and now within the corporate limits of the town of Kinston, and set out particularly the metes and bounds of it. The defendant, by her answer, admitted that she did appoint Amos Harvey as her agent to sell the house and lot described in the bill, but she denied that the written contract therein set forth is binding upon her, because it purported to be made by him on his own behalf, and was therefore obligatory only upon him. She admitted, however, that the plaintiff paid the purchase money to her agent, and that he paid it over to her, but she alleged that the payment was made in Confederate treasury notes. Nothing was said either in the bill or answer as to the value of the house and lot, or as to the adequacy of the price paid for it. The defendant admitted that she had no other house and lot in the county of Lenoir on the 13th of December, 1862, the date of the contract above specified, and that soon after that time the plaintiff entered into possession of the premises, and has been occupying them ever since.

No counsel for the complainant.Strong, for the defendant .

*2 An instrument to be binding upon a principal must be executed in his name. Redmond v. Coffin, 2 Dev. Eq. 439; Scott v. McAlpin, N. C. Term Rep. 155.

The agency must be stated in the instrument, and cannot be shown by evidence dehors. Stackpole v. Arnold, 11 Mass. 27; Clark v. Courtenoy, 5 Pet. 345; Finley v. Stewart, 5 Sandf. 101; Hancock v. Fairfield, 30 Maine 229, Bac. Ab. I. 10.

The contract is too vague. 1. The agreement is to make a deed, and it is not expressed for what estate. 2. The locality of the land is not sufficiently stated. Lock v. Anders, 4 Jon. Eq. 77; Allen v. Chambers, 4 Ire. Eq. 125; Plummer v. Owens, Bus Eq. 254; Capps v. Holt, 5 Jon. Eq. 154. 3. The description “Mrs. Hooker,” is ambiguous, and being patent, cannot be explained by evidence dehors.

The consideration (Confederate money) is illegal, and against the policy of the law. Ordinances of the Convention of 1865, p. 66. Harris v. Thornburg, Am. Law Rev. No. 3, vol. 1, p. 591.

Equity will not always enforce specific performance when damages may be recovered, but will look to the circumstances of each case. Cannaday v. Shepard, 2 Jon. Eq. 224; Lloyd v. Wheatly, Ib. 267; Leigh v. Crump, 1 Ire. Eq. 299; Prater v. Miller, 3 Hawks 628.

It should have been alleged in the bill that the price is a fair one.

BATTLE, J. (After stating the case as above.)

The defendant objects to the relief sought by the plaintiff upon several grounds, which we now proceed to consider.

1. The first objection is, that the contract was that of the agent only, and that the defendant was therefore not bound by it. We think otherwise. It is true that the note or memorandum of the contract does not expressly state that Amos Harvey was the agent of the defendant, or that he was acting as her agent, but it does sufficiently appear by implication that he was so acting, for he says, “I do agree for Mrs. Hooker to make a deed,” &c.; which means that she shall make a deed, &c. This shows that Harvey was acting as agent, and then a signature in his name satisfies the requirement of the Statute of Frauds, as was expressly decided in the case of Oliver v. Dix, 1 Dev. & Bat. Eq. 158. In that case, at page 155, it is said that “within the statute the signature need not be that of the principal, nor in his name, but that of the agent is sufficient.” Besides, it appears from the answer, that the defendant admitted the agency, and ratified the contract of sale made by the agent, a circumstance which is also relied upon in Oliver v. Dix, as having a binding effect upon the principal. The cases of Redmond v. Coffin, 2 Dev. Eq. 439, and Scott v. McAlpin, N. C. Term. Rep. 155, referred to by the defendant's counsel, have no application, because they were cases of deeds of conveyance executed by attorneys in fact, and not cases of notes or memorandums of agreements under the Statute of Frauds.

*3 2. The second objection is, that the note or memorandum of the contract is too vague and indefinite in several particulars; first, in that the defendant is to execute a deed without saying for what quantity of estate; secondly, in that the location of the house and lot is stated only to be North of Kinston, without saying how far North; thirdly, in that the name of Mrs. Hooker is ambiguous, and, being a patent ambiguity, cannot be aided by extrinsic evidence.

In noticing this objection, we must bear in mind that a note or memorandum of a contract is, in its very essence, an informal and imperfect instrument. Its object is to furnish aid to the memory of a transaction, and, though it must distinctly set forth all the material terms of the contract, ( Mallory v. Mallory, Bus. Eq. 80,) it will answer the purpose, if it do so in such words as will enable the court, without danger of mistake, to declare the meaning of the parties. An agreement by a person having a fee-simple interest in land to make a deed for it, is universally understood (in the absence of anything to show the contrary) to mean a deed to convey the fee. So as to the location of the property, when it is said in common parlance that a house and lot is North of a particular town, it would always be under-derstood as being situated somewhere in the vicinity of the North part of the town. At all events, when the house and lot are spoken of as her house and lot, and the defendant admits that she had but one in the county, there can be no difficulty about the identification. Under such circumstances the description becomes specific and certain, just as a legacy of “my twenty-five shares of bank stock,” the testator having just that number of shares, would be specific, while a bequest of twenty-five shares, without the addition of the word “my,” would be a general legacy. Davis v. Cain, 1 Ire. Eq. 304. In this respect the present case differs materially from those of Allen v. Chambers, 4 Ire. Eq. 125; Plummer v. Owens, Busb. Eq. 254; Murdock v. Anderson, 4 Jon. Eq. 77, and Capps v. Holt, 5 Jon. Eq. 153, referred to by the defendant's counsel.

Mrs. Hooker admits her identity with the person who authorized Amos Harvey to sell her house and lot, which is also admitted to be the house and lot mentioned in the pleadings, and this is perhaps a sufficient answer to the objection; but we regard the name Mrs. Hooker, as rather an imperfect than an ambiguous description, and therefore liable to explanation by testimony dehors the instrument, like the case of the bequest to the Deaf and Dumb Institution. See Busb. Eq. 65. That explanation is amply furnished by admissions in the defendant's answer.

3. The next objection is one of vital importance, not only to the parties to this case but to the whole community. The answer alleges that the consideration paid for the purchase of her house and lot was in Confederate treasury notes, and the defendant's counsel contends that such consideration was illegal, and that therefore the contract of purchase founded on it was void. The illegality is said to consist in the passing of the Confederate treasury notes, which, it is contended, had a tendency to aid the rebellion. The...