Rudisill v. Whitener
| Decision Date | 14 December 1907 |
| Citation | 59 S.E. 995,146 N.C. 403 |
| Parties | RUDISILL v. WHITENER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Guion, Judge.
Action by M. R. Rudisill against A. A. Whitener. Judgment for plaintiff. Defendant appeals. Reversed, and new trial ordered.
Defendant should not be compelled to specifically perform his contract to sell his home to plaintiff, where he would not have entered into the contract if he had known he could not get for a home, land belonging to S., on which plaintiff had an option, and though plaintiff merely agreed that "if" he decided not to buy the S. land, he would turn over the option to defendant, he had an understanding with others, who were to assist him, that he would take the S. land, but by his acts and declarations induced defendant to believe that defendant was to get it.
This was an action to compel specific performance of a contract to sell land. The plaintiff alleged that on the 6th day of October, 1905, the defendant executed and delivered to him the following paper writing: Plaintiff alleged that he had tendered the balance of the purchase money within the time named and demanded a deed for the land. The defendant declined to accept the money or execute the deed. He demands judgment, etc. Defendant admits the execution of the receipt, and alleges that he was induced to execute the same by the promise of plaintiff to transfer and deliver to him an option which plaintiff then held to buy a tract of land known as the "Sigmon Land"; that plaintiff at the time, and in consideration of the execution of said receipt, executed and delivered to him the following paper writing: Defendant alleges that "he is a man of considerable age and cannot read writing at all without the use of glasses, and, being an illiterate man, cannot read well even with the aid of glasses; that the paper was not read correctly to him, but was so read as to induce him to believe that it was an absolute and unconditional agreement to transfer to him the option on the Sigmon land; that he accepted the sum of $10 and signed the receipt by reason of the positive agreement with plaintiff that he would transfer to him the Sigmon option. Defendant testified that he agreed to sell his land to plaintiff, only with the understanding that plaintiff would surrender to him the option on the Sigmon land; that plaintiff said he would send the defendant the option in a few days, "in plenty of time for me to get my deed from Sigmon." Defendant was corroborated by his wife. He said that he was willing to convey the land if plaintiff would transfer the Sigmon land to him. Plaintiff testified that he had an option to buy the Sigmon land, at the price of $2,500. He says that defendant wanted the Sigmon land if he sold his own. Mr. Aderholt, witness for plaintiff, who wrote and witnessed both papers, testified that he read them correctly to defendant. "At the time the papers were signed, we all knew that Whitener wanted the Sigmon land, and that he would give $100 for the option." He further testified: There was other testimony, but the foregoing is sufficient for the purpose of passing upon the single exception in the record.
His honor submitted the following issues: Defendant in apt time requested his honor to charge the jury that, "if they should be fully satisfied from the evidence that, when the defendant signed the agreement to convey, he was reasonably induced by the words and acts of the plaintiff to believe that the plaintiff was going to transfer to defendant the Sigmon option, and on account of such belief signed the contract sued on, they should answer the first issue, 'No."' The court declined to give this instruction, holding that the inquiry was limited to whether or not Aderholt read the papers to defendant as they were written, as alleged in the answer and upon the evidence before the jury. Defendant excepted. There was judgment upon the verdict that defendant execute a deed to plaintiff for the land upon the payment of the balance of the purchase money. Defendant appealed.
Avery & Ervin and M. H. Yount, for appellee.
His honor inadvertently failed to note the distinction between a suit brought to rescind and set aside a contract on the ground of alleged fraud in the factum, or in the treaty, and one in which defendant is resisting a bill for specific performance, without drawing into question the validity of the contract. He unduly narrowed the scope of the defense. If, for instance, Whitener had sued plaintiff to rescind the contract for that his signature was obtained by fraud, in that it was read to him incorrectly, and its true contents suppressed, the instruction asked could not have been given. The defendant, it is true, makes that charge; but, in one aspect of his answer, his defense is based upon the contention that, taking the contract as written, he was induced to sign the receipt and the agreement to sell his land upon the express promise and assurance by the plaintiff that he would, in consideration and as a part of the transaction, transfer to him the option which plaintiff held on the Sigmon land. The two papers constituted but one transaction, or agreement, and should be read together. They were written, signed, and delivered simultaneously. Thus read, they constitute mutual covenants. The defendant agrees to sell his land, and the plaintiff agrees to transfer the Sigmon option if he decides not to buy himself. The paper writing read in the light of the treaty, clearly represents that plaintiff is uncertain whether he will buy the Sigmon land-that, in good faith, he is considering the question. If in truth he had, at the time he signed the paper, determined in his own mind that he would buy the land, and did not intend to let defendant have it, and that he induced defendant to believe that he was considering the question of buying, certainly a court administering equitable relief, upon well-settled equitable principles, would not interfere, but leave plaintiff to his action for damages. While it is true that a provision to do something in the future is not a misrepresentation of a fact, it is equally true, both in morals and equity, that if one make a promise which he knows, at the time, he will not perform, has no intention of making good, he acquires no enforceable right against another who honestly relies upon the promise. This is true when the contract is partially executed.
If one being insolvent, conceals his condition and promise to pay for goods with a preconceived purpose not to do so, no title will pass to him. Wilson v. White, 80 N.C. 280. In Des Farges v. Pugh, 93 N.C. 31, 53 Am. Rep. 446, Ashe, J., says: "It matters not by what means the deception is practiced-whether by signs, by words, by silence, or by acts-provided that it actually produce a false and injurious impression of such a nature that it may reasonably be supposed that, but for such deception, the vendor might never have entered into the contract." While it is difficult to show the state of a man's mind, if by his acts and conduct it can be ascertained, it is as much a fact as the state of his digestion. Hill v. Gettys, 135 N.C. 373, 47 S.E. 449. If, therefore, at the time plaintiffs signed the paper by which he agreed to transfer the option on the Sigmon land to defendant if he concluded not to buy it himself, he had determined to buy it, or, as he says, "it was understood" that he would buy it, we think that, whether or not it was sufficient to rescind an executed contract, such fact is available to defendant in this action, wherein the plaintiff is invoking...
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