Siler v. Gray

• Decision Date: 28 February 1882
• Citation: 86 N.C. 566
• Court: North Carolina Supreme Court
• Parties: T. P. SILER, Adm'r, v. T. R. GRAY, Adm'r.

86 N.C. 566

T. P. SILER, Adm'r,

v.T. R. GRAY, Adm'r.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION tried at Fall Term, 1881, of MACON Superior Court, befor McKoy, J.

On the 11th day of October, 1869, Jesse R. Siler, being the owner of a certain tract of land, conveyed the same in fee to his son Leon F. Siler, the two, at the same time entering into a contract of which the following is a copy:

“This agreement made and entered into this the 11th October, 1869, between J. R. Siler of the first part, and L. F. Siler of the second, both of Macon county, in the state of North Carolina, witnesseth, that for and in consideration of L. F. Siler's administering to the comfort of J. R. Siler and his wife, H. D. Siler, during their lives and seeing that they are well provided for, and also in consideration of L. F. Siler's consent that J. R. and H. D. Siler shall have a life estate and joint occupancy with him in J. R. Siler's home tract of land, surveyed, &c., and in further consideration that L. F. Siler shall pay Roxana E. Moore and Harriet T. Sloan five hundred dollars each at the demise of J. R. and H. D. Siler, the said J. R. and H. D. Siler have this day signed, sealed and delivered to L. F. Siler a deed in fee simple to two hundred and sixty-eight acres of land, known as J. R. Siler's home place, and bounded, &c.; Now if the said L. F. Siler shall well and faithfully comply with the terms of this agreement, then this contract shall be construed to be complied with otherwise the said L. F. Siler shall forfeit and pay to the said party of the first part or his heirs the sum of five thousand dollars. In testimony of which we bind our heirs and legal representatives, hereunto setting our hands and seals, &c.” (Signed and sealed by J. R. Siler and L. F. Siler.)

Immediately upon the execution of the deed and said agreement, L. F. Siler went into the joint occupancy of the land with J. R. Siler, and resided thereon with his own family and that of J. R. Siler, until his death in 1870, during which period he took charge of the farm; and after his death his widow and children remained upon the premises with J. R. Siler and his wife, and so continued to do until his death in March, 1876, and her death in the year following.

The plaintiff is the administrator of J. R. Siler, and the defendant, the administrator of L. F. Siler.

In his complaint the plaintiff alleges a breach of said agreement, in that, neither the legal representatives of the said L. F. Siler, or his heirs, or any person for him have undertaken or offered, since his death, to comply with the terms thereof, by either supporting the said J. R. Siler and his wife, or by paying to the said Roxana E. Moore and Harriet T. Sloan the sums agreed to be paid them, and he prays for judgment against the estate of the defendant's intestate for the sum of five thousand dollars.

In his answer the defendant alleges that his intestate fully complied with all the stipulations contained in said agreement, up to the time of his death, and that a farther performance on his part was thus rendered impossible by the act of God.

At the trial the plaintiff offered the above agreement in evidence, and insisted that the measure of damages was the sum of five thousand dollars--the sum mentioned in the instrument, but His Honor ruled that the sum mentioned was a penalty and not liquidated damages, to which the plaintiff excepted.

The plaintiff then offered evidence tending to show that after the death of the defendant's intestate, the plaintiff's intestate, supported himself and wife, during the remainder of his life, and that he was compelled to employ others to superintend his business; and other evidence to show the damages he sustained by reason of the failure on the part of the defendant's intestate, or his representatives, to perform the stipulations contained in said agreement, but His Honor, holding that the plaintiff could not recover of the defendant except for a breach of the contract committed in the life time of his intestate, excluded the evidence, and thereupon the plaintiff excepted, submitted to a non-suit, and appealed.

Mr. J. H. Merrimon, for plaintiff .

Mr. Armistead Jones, for defendant .

RUFFIN, J.

There being no evidence offered in support of the breach, alleged to consist, in the non-payment of the sums stipulated to Roxana E. Moore and ...