Poe v. Lennon

• Decision Date: 20 September 1916
• Docket Number: 114.
• Citation: 89 S.E. 1003,172 N.C. 67
• Parties: POE v. LENNON ET AL.
• Court: North Carolina Supreme Court

89 S.E. 1003

172 N.C. 67

POE v. LENNON ET AL.

No. 114.

Supreme Court of North Carolina

September 20, 1916

Appeal from Superior Court, Harnett County; Devin, Judge.

Action by H. H. Poe against R. B. Lennon, the W. F. Smith Company and another. Judgment of nonsuit for defendant Smith Company and judgment for the other defendants, and plaintiff appeals. No error.

The plaintiff declared on two causes of action, in the first of which he alleged that he was induced to buy certain land in Columbus county by the false and fraudulent representations of the defendants, R. B. Lennon, W. F. Smith Company, and Hiram Baggett, for the price of $5,500, on which he paid $1,500, and for the balance of $4,000 gave his two notes each for $2,000, secured by mortgage, and, in the second, he alleged that Hiram Baggett, for himself and his codefendants had agreed to buy the land from plaintiff, or take it off his hands, at $6,100, which would yield to plaintiff a profit of $600, as he (Hiram Baggett) had contracted to sell it to another at $7,000. The following portions of the testimony and record will sufficiently show the nature of the contentions and matters in controversy. Plaintiff testified in his own behalf:

"In the latter part of the year 1912, I had sold my farm and moved to Lillington. I was interested in buying some farm land. I saw an advertisement in the newspapers of some land in Columbus county for sale by Mr. R. B. Lennon, who was then merchandising in the town of Lillington. I called to see him with reference to this land, and as a result of the conversation we made an appointment and went to Columbus county together and looked over the property. He priced the property to me at $6,500. We spent two nights and one day at Evergreen, investigating the property. Mr. Lennon was so closely associated with me that I did not make much inquiry from other people as to the property. I declined to buy the property at his price, but on our way back, while stopping over at Elrod, he agreed to reduce the price to $5,500 provided the W. F. Smith Company, of Fayetteville, who he said held a mortgage on this property and some other for $6,500, would consent to the sale and join with him in the deed. I agreed to buy an option on the land at the price of $5,500, for 12 months. We arrived in Fayetteville after night, and early next morning Mr. Lennon called Mr. Smith, of the W. F. Smith Company, and asked him to come down to the station to meet us before the departure of our train for Lillington. Mr. Smith agreed that the sale at $5,500 would be satisfactory to the W. F. Smith Company, provided the payments were made to them, and that he would stand by whatever trade Lennon made. Upon our return to Lillington, I drew an option on the property for 12 months, and Mr. Lennon signed it. I paid him $11 for it. Later I wrote Mr. Lennon a note that I did not think I would take the property, and he might consider himself released from his option. Soon thereafter the defendant Hiram Baggett came to me and asked if I expected to take the Lennon property. I told him that I had not investigated the property sufficiently to buy it, and I would not buy it without further investigation. A few days afterwards I saw Mr. Baggett again, and he asked me at what price I had gotten an option on the Lennon property, and I told him at $5,500. He expressed great surprise, and said that he had taken an option from Lennon also, but that his option was for $6,450. He asked if my option was recorded, and said that he had sent his for registration, but showed me a copy of it. Mr. Baggett said he was buying the land for another man, and had it sold for $7,000; that his man did not have the money to get. Q. What proposition did Mr. Baggett make you with reference to buying the land and any disposition of the land thereafter? (Defendant objects. Overruled. Exception.) A. He told me that he would take the land, and there was an agreement drawn up, but never signed. I drew up the agreement and came down town to sign up and did not find him. I got up with him finally two or three times, but the agreement was never signed, and when we came to the day of trade with Lennon, Mr. Baggett said I might rely upon his word, and I did not think but what he was ready to take it at once. I was to get $600 profit between my option and his price to me. I asked him if he was thoroughly satisfied with the value and with the title, and he said he was; that the land was worth more than $7,000, and he was selling it for that price. I was not to pay any cash; the first payment of $1,500 was to be deferred one month, to give time for the deal to be closed. About a month thereafter, to wit, on or about the 26th day of May, 1913, I met with R. B. Lennon and Mr. W. F. Smith, of the W. F. Smith Company, and a Mr. Pond, of said company, at the office of Messrs. Baggett & Baggett, of which firm

Hiram Baggett was a member, but who was not present at that time, and a deed was prepared and executed by R. B. Lennon and wife and the W. F. Smith Company, conveying to me the land in question, and I thereupon executed and delivered my note for $1,500 due July 1, 1913, payable to the W. F. Smith Company, which was secured by a mortgage on a house and lot in Lillington, and two bonds in the sum of $2,000 each, payable to W. F. Smith Company, one due January 1, 1914, and the other due January 1, 1915; they being secured by a mortgage on the land in controversy. On that day, Hiram Baggett told me that he would go to Columbus immediately and close up his deal, conveying the land to his purchaser at $7,000. On the 27th day of May I received a letter from said Baggett dated Evergreen, May 27, 1913, as follows:

'I tried to see you before I left home yesterday in regard to the property here. I think my party is going to fall down on taking it. He says he don't think he will purchase at the price. I will let you know certainly when I get home.

'Respectfully, H. Baggett.'

Thereafter I received from said Baggett a letter dated Hot Springs, Ark., on June 6, 1913, as follows:

'Mr. H. H. Poe, Lillington, N. C.--Dear Sir: My parties have refused to take the Lennon land. I did not receive this notice until I got here yesterday. I thought it my duty to inform you so you could dispose of it to the other parties. I hope you can do as you said, get more out of it than my option was for. My option was good until the 15th, but I release any claim on the land by reason of the option.

'Respectfully, H. Baggett.'

The reference in said letter to a conversation of mine, in which it was suggested that I had said that I could get more out of it than this option, was a conversation that I had with him immediately after we had closed our contract, in which I told him that R. B. Lennon told me not to sell at the price at which Baggett had agreed to take it off my hands, for I could get more from another party. This conversation I had related to Baggett, and told him that he might investigate. After Mr. Baggett's return from Hot Springs I approached him about the matter, and asked him what was the trouble, and he said that his man had fallen down on getting the money. I asked him to give me the man's address, and he said he would turn over his correspondence. He said that he could not find it right then, but would look it up. I asked him to give me the man's name and address, and he replied that he would get up the correspondence, and put me off that way. Prior to the sale R. B. Lennon told me the two houses in Evergreen would rent for $8 or $10 per month, but upon investigation after the purchase, I found they were renting for $3 or $4 per month. I do not consider the land was worth exceeding $2,500 at the date of my purchase. I paid to the W. F. Smith Company through their attorneys Baggett & Baggett, my note for $1,500 in installments as follows: $400 on July 23, 1913; $170 on August 13, 1913; $956.79 on September 11, 1913."

There was other evidence on the part of the plaintiff tending to show the value of the lands in question as from $3,360 to $3,798 at the time of the conveyance to the plaintiff. The option of R. B. Lennon to Hiram Baggett was introduced in evidence, showing that it was registered May 26, 1913, and that it expired on June 15, 1913. At the conclusion of the plaintiff's evidence there was motion on the part of W. F. Smith Company for judgment of nonsuit. Motion allowed, and plaintiff excepted.

The defendants Lennon and Baggett offered testimony tending to contradict the material testimony of the plaintiff and to show that the land was worth from $5,500 to $7,000 at the time of the sale, and the defendant Baggett testified, in explanation of his option not being registered, at the time he told Poe that it had been sent on for registration, that he had sent the same down for registration, but that it was held in the office for payment of fees until the 26th of May, when the fees having been paid, it was actually registered.

Defendant Baggett denied that he had agreed to buy the land for $6,100 or at any other price, or that he had sold the land at $7,000, saying that he did tell Poe that he had a prospective purchaser for the land, and that he thought he could sell it to him at $7,000. Mr. Baggett further testified that he asked Mr. Poe, in the event he purchased the land, if he would be willing to extend...