Pinnix v. Smithdeal

• Decision Date: 09 November 1921
• Docket Number: 393.
• Citation: 109 S.E. 265,182 N.C. 410
• Parties: PINNIX v. SMITHDEAL.
• Court: North Carolina Supreme Court

109 S.E. 265

182 N.C. 410

PINNIX v. SMITHDEAL.

No. 393.

Supreme Court of North Carolina

November 9, 1921

Appeal from Superior Court, Guilford County; Finley, Judge.

Action by M. H. Pinnix against L. A. Smithdeal. From a judgment for plaintiff, defendant appeals. New trial ordered.

Upon the issue of the statute of limitations the burden of proof is on plaintiff.

The action is to recover one-half of profits accrued from a deal in real estate, alleged by plaintiff to be due from defendant. There was denial of liability and plea of statute of limitations. On issues submitted the jury rendered the following verdict:

"(1) What amount, if any, is plaintiff entitled to recover of defendant? Answer: $2,218.24, with interest at 6 per cent from March 6, 1921.

(2) Is plaintiff's claim, or any part thereof, barred by the statute of limitations? Answer: No."

King Sapp & King and Fentress & Jerome, all of Greensboro, for appellant.

Wilson & Frazier, of Greensboro, for appellee.

HOKE J.

There were allegations with evidence on part of plaintiff tending to show that in September, 1914, plaintiff, an agent who had made some successful deals in real estate, was approached by defendant with a request that if plaintiff found a desirable investment of that kind defendant would advance the money, and on resale they would divide the profits equally; that soon thereafter plaintiff found a piece of property in Greensboro, known as the Hawkins place, and same was purchased by defendant pursuant to agreement. It being considered desirable that some improvements should be made on the property, plaintiff undertook to supervise this work, and about the time or soon after it was completed and the property rented, plaintiff, in December, 1914, suggested that the agreement between them be reduced to writing. The parties having met for that purpose, there was a dispute between them as to how much interest defendant should be allowed on the money he had advanced for the purchase and improvements.

The evidence showed that defendant had procured this money by a sale of some bank stock on which he was realizing 8 per cent., payable semiannually, and he contended the agreement was that in adjustment of this matter he was to be allowed the same per cent. Plaintiff denying this, no written or further agreement was made about it; defendant testifying, in reference to this interview, that when the disagreement arose plaintiff said he would proceed to sell, and defendant replied: "No; you won't sell my property. You haven't invested a cent in it."

The facts in evidence tended further to show that defendant retained control and possession of the property, renting it, etc., till March 5, 1919, when he sold same at a profit, according to plaintiff's testimony, of $4,436.48; one-half of same, $2,218.24, being plaintiff's share as per their agreement, and defendant's evidence being to the effect that the entire profits were about $2,000 or a little more. And there were other facts in evidence which may have tended to render the alleged agreement indeflnite. There was also evidence as to the character of plaintiff's service in supervising the improvements and the time he gave to this work; that, on sale being made, plaintiff had demanded the share of the profits alleged to be due him, and payment was refused. Upon this, a sufficient statement to a proper apprehension of the questions presented, the case was submitted to the jury in two aspects of liability; one under and by virtue of the express agreement to divide the profits, and another on a quantum meruit for services rendered, in case the first position should not be sufficiently proved. As to the express agreement, the contract, if so established, being for a division of profits on and after a sale of realty is not within the statute of frauds. Bourne v. Sherrill, 143 N.C. 381, 55 S.E. 799, 118 Am. St. Rep. 809; Michael v. Foil, 100 N.C. 178, 6 S.E. 264, 6 Am. St. Rep. 577.

And under the express terms of the agreement, this division of the profits to take place after the sale, the statute of limitations would not begin to run until a sale was had, and defendant, by his mere verbal effort to repudiate the agreement in 1914, even if his words amounted to that, could not force the plaintiff to presently commence suit, but he was entitled at his election to await for division the time that the agreement specified, under principle approved in Smith v. Allen, 181 N.C. 56, 106 S.E. 143; Helsabeck v. Doub, Administrator, 167 N.C. 205, 83 S.E. 241, L. R. A. 1917A, 1; Smith v. Lumber Co., 142 N.C. 26, 54 S.E. 788, 5 L. R. A. (N. S.) 439; Markham v. Markham, 110 N.C. 356, ...