Samonds v. Cloninger, 464.

• Docket Nº: 464.
• Citation: 127 S.E. 706, 189 N.C. 610
• Case Date: May 06, 1925
• Court: United States State Supreme Court of North Carolina

127 S.E. 706

189 N.C. 610

SAMONDS
v.
CLONINGER.

No. 464.

Supreme Court of North Carolina

May 6, 1925

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

Action by J. M. Samonds against G. D. Cloninger. Judgment for the defendant, and plaintiff appeals. Reversed.

Plaintiff not required to tender payments under option where defendant broke contract by conveying to others.

Denial of liability under option excuses tender.

Plaintiff alleges that defendant executed August 20, 1923, an option, whereby the defendant gave, for 60 days, the plaintiff an option to purchase the locus in quo at the price of $10,000 net, payable "$2,500 in cash and balance, $5,000, in B. & L., $2,500 on second mortgage for 2 years." The option provided that the defendant would execute and deliver a deed in fee with full covenants of warranty and seisin, and free from all incumbrances. It was further stipulated that, upon a failure to exercise the option within the time (60 days), the obligation would be null and void.

It appears in evidence that plaintiff is a real estate dealer, and that he did not register this option. On September 19, 1923, the defendant, together with his wife, conveyed the locus in quo to W. T. Burroughs and H. L. Taylor and their wives for $10,000. Evidence for plaintiff tends to show that, on October 18, 1923, J. A. Williamson agreed with plaintiff to purchase the locus in quo at the price of $11,000, and gave plaintiff a letter evidencing his offer, and containing a check for $2,500 as cash payment thereon. This check was certified by the Merchants' and Farmers' National Bank, of Charlotte, N.C. On October 19, 1923, plaintiff advised defendant by letter that he wished to exercise the option, and that he was ready to pay the cash payment and to "sign for the balance purchase price in accordance with the terms of the option which I hereby accept." The signing and delivery of the option was not denied. Plaintiff testified this was done on its date or the next day.

Plaintiff further testified that he phoned defendant that he had a purchaser, and defendant said the property was sold; that plaintiff went into defendant's store and told him that he had a purchaser for the property in the option, and that the purchaser was willing to take it and to give him this check ($2,500) if he would deliver the deed. Cloninger said the property had been sold. "I (plaintiff) asked him what disposition he was going to make of the option I held on the property, and he said, "None; you have no option."

Plaintiff further testified that he showed defendant a copy of the option, and the defendant showed the disposition not to want to talk to plaintiff about the option. Plaintiff testified that he stood ready, able, and willing to perform the option on his part. There was other evidence from which defendant claims plaintiff was unable to comply with the option, and that the efforts to sell to Williamson were after he knew defendant had sold the locus in quo and was not a bona fide effort to sell, but only a pretense to get money from defendant. The defendant offered no evidence.

In the answer, defendant admits the signing of the option, and alleges that the writing did not contain all of the contract between the parties, and that the agreement was based on the condition that the plaintiff would advertise the locus in quo and make diligent effort to sell same at once, and that said writing was signed as a mere incident to the "aforesaid contract of agency." And the consideration was the agreement to make diligent effort to sell; and that plaintiff breached the contract by his failure to advertise, and to make diligent effort to sell the land; that defendant waited some time for plaintiff to sell the land, and he then sold the property, and when his deed was registered the plaintiff began to try to fix up a pretended sale, and by fraudulent representation induce a buyer to make an offer.

At the close of plaintiff's evidence, on defendant's motion, the court entered judgment as upon nonsuit, and plaintiff excepted and appealed. [127 S.E. 707]

Taliaferro & Clarkson, of Charlotte, for appellant.

Parker, Stewart, McRae & Bobbitt, of Charlotte, for appellee.

VARSER, J.

This case presents only the question whether, upon all the evidence, viewed in its most favorable aspect for the plaintiff, there was any evidence sufficient to support a verdict for the plaintiff upon the issues necessary to his recovery.

The defendant offered no testimony, and his allegations that present an affirmative defense are not material to this discussion further than as his explanation of transaction.

The option in the instant case is under seal and extends 60 days from the date. It is a continuing offer to sell for the period named--60 days. We find in the instant record sufficient evidence upon which the jury may find that the plaintiff gave notice to defendant of his acceptance of the terms of the option, and of his readiness, willingness, and ability to perform it on his part.

The option under seal required no consideration to support it. Of course the recital of a consideration in the contract is not conclusive as to the consideration, further than the contractual nature of this recital extends. This recital is contractual that a consideration exists sufficient to support the contract. Harrell v. Watson, 63 N.C. 454; Mordecai's Law Lectures, 931; Minor's Institute, vol. 3, pt. 1, 139; Watkins v. Robertson, 105 Va. 269, 54 S.E. 33, 5 L. R. A. (N. S.) 1194, 115 Am. St. Rep. 880; Willard [127 S.E. 708] v. Tayloe, 75 U.S. (8 Wall.) 557, 19 L.Ed. 501; O'Brien v. Boland, 166 Mass. 481, 44 N.E. 602; Weaver v. Burr, 31 W.Va. 736, 8 S.E. 743, 3 L. R. A. 94; McMillan v. Ames, 33 Minn. 257, 22 N.W. 612; Thomason v. Bescher, 176 N.C. 622, 97 S.E. 654, 2 A. L. R. 626, Hoke, J., quoting from Pomeroy on Contracts, says:

"If

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