Sherrill v. Hagan

• Decision Date: 28 February 1885
• Citation: 92 N.C. 345
• Court: North Carolina Supreme Court
• Parties: J. A. SHERRILL v. ADAM HAGAN.

92 N.C. 345

J. A. SHERRILL

v.ADAM HAGAN.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION, tried before MacRae, Judge, and a jury, at Spring Term, 1885, of CATAWBA Superior Court.

There was a verdict and judgment for the plaintiff and the defendant appealed.

Messrs. Batchelor & Devereux, for the plaintiff .

Messrs. M. L. & George McCorkle, for the defendant .

ASHE, J.

This was a civil action for the surrender and cancellation of a note and for money paid.

The plaintiff, in his complaint, alleged that he contracted with the defendant for a tract of land lying in the county of Catawba, known as the “George Hooper place,” at the price of two thousand dollars, one thousand of which was paid in cash, and the balance secured by two notes, the one payable on the first day of March, 1883, and the other on the first day of January, 1884, each bearing interest at eight per cent. from the first of March, 1883. That the defendant and his wife executed a deed for the land on the 29th day of December, 1882, and plaintiff paid the first of said notes about the time of its maturity, and about the first of March, 1883, paid the sum of three hundred dollars, which was endorsed on the second note.

That, at and before the date of the said deed, the defendant expressly agreed with the plaintiff that in case said tract of land did not contain as much as three hundred and fifty acres, the defendant would make good the deficiency and refund to the plaintiff the amount of the deficiency, to-wit: $5.71 3/7 per acre for the number of acres between the number stated by defendant, which was three hundred and fifty acres, and the number that said tract actually contained. That he has had the land surveyed since the deed was delivered, and it was ascertained to contain only 298 3/4 acres.

The plaintiff therefore prayed judgment??

(1) That the defendant surrender the second note above described to be cancelled;

(2) For judgment for $91.21, the amount so overpaid, with interest thereon from the 1st of March, 1883, until paid;

(3) For costs of action, and for such other relief as he may be entitled to in the premises.

The defendant admitted the contract of sale as alleged by plaintiff, and that he and his wife executed the deed to the plaintiff on the 29th of December, 1883, and that he did say to the plaintiff that the land contained three hundred and fifty acres as he was informed by an old surveyor.

He admitted that some time before the 21st of December he did agree to guarantee the number of acres to be 350 if plaintiff purchased the land, but the plaintiff did not accept the offer, and there was then no trade. He denied that there was any contract made before the 29th of December, 1883, or that he agreed to make up any deficiency on the number of acres less than 350 at the time of the trade. He stated that he had no knowledge or information sufficient to form a belief as to the plaintiff's allegation with regard to the quantity of acres ascertained by the survey, and therefore held plaintiff to strict proof.

The following issues were submitted to the jury:

1. Did the defendant Hagan agree to pay or refund plaintiff $5.71 per acre for the difference between 350 acres and the number of acres actually contained in the land described in the pleadings, in case said land did not contain as much as 350 acres?

2. How many acres did the land contain?

3. How much does defendant owe plaintiff, if anything?

To all of which issues the defendant excepted.

The plaintiff testified in his own behalf that at the time of making the contract of sale, which was subsequently consummated by the defendant and wife, the defendant stated that the land contained three hundred and fifty acres, but upon the plaintiff expressing a belief that the land did not contain so many acres, told the defendant if he would have the land run out and it held out three hundred and fifty acres he would talk about the trade. Defendant replied, he would never pay a cent for the survey--that there were three hundred and fifty acres by actual survey, and that if he would take the land at the price, and have it run out at his own expense, whatever it lacked he would pay him in proportion, and at the time of executing the deed the defendant admitted that he had told M. O. Sherrill that he had made plaintiff a foolish proposition to make the land good for 350 acres and did not hold the plaintiff bound for the excess if it run out more than 350 acres, and that the defendant admitted after the deed was executed that he did tell the plaintiff if the land did not run out 350 acres he would make it good in proportion.

Plaintiff also offered the testimony of one L. A. Rudisill, that he heard the trade between the plaintiff and defendant throughout, in front of Mc. Sherrill's store, and Hagan told the plaintiff he could have the land for $2,000, and if it did not run out as much as 350 acres he would reduce the price in proportion.

Plaintiff further offered the testimony of the county surveyor, who testified that he had surveyed the land and it contained only two hundred and ninety-eight and a-half acres.

The defendant objected to all of the testimony offered by the plaintiff that it contradicted and added to the written contract as evidenced by the deed, and was, therefore, inadmissible. But the objection was overruled by the court, and the defendant excepted.

The defendant offered himself as a witness in his own behalf and testified that he did not agree to pay or refund, or be responsible to the plaintiff for any deficiency in the land, and that it was the express agreement...