Smith v. Joyce
| Decision Date | 04 January 1939 |
| Docket Number | 739. |
| Citation | 200 S.E. 431,214 N.C. 602 |
| Parties | SMITH et al. v. JOYCE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; W. F. Harding, Judge.
Action by R. L. Smith and others against R. T. Joyce to recover the purchase price of land. Judgment of the county court in favor of plaintiffs was affirmed by the superior court, and defendant appeals.
Reversed.
The act of an agent after termination of agency for a particular purpose and notice of revocation of his agency is ordinarily not binding on the principal, unless facts afford basis for application of some other principle of law not presently presented.
This action was instituted in the Forsyth County Court to recover the purchase price of land alleged to have been bid off by the defendant at an auction sale. Among other defenses the defendant pleaded the statute of frauds.
From judgment on the verdict in favor of plaintiffs defendant appealed to the Superior Court, and, from judgment in the Superior Court overruling his assignments of error and affirming the judgment of the County Court, the defendant appealed to the Supreme Court.
Hastings & Booe, of Winston-Salem, Fred Morris, of Kernersville, and Peyton B. Abbott, of Winston-Salem, for appellant.
Elledge & Wells, of Winston-Salem, for appellees.
The appellant's principal assignment of error relates to the denial of his motion for judgment of nonsuit duly entered in the trial court. Having preserved his exception on appeal to the Superior Court, he now presents that question for decision by this court. The motion for judgment of nonsuit was interposed on the ground that the plaintiffs' evidence failed to show a valid contract for the purchase of the land enforceable under the statute of frauds upon which specific performance could be decreed.
The statute of frauds (29 Ch. II, c. 3), as adopted in this state and brought forward in section 988 of the Consolidated Statutes, provides that all contracts to sell or convey land shall be void "unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized." The evidence relied upon by the plaintiffs as constituting a sufficient memorandum under the statute consisted of several paper writings: (1) Printed advertisement of sale by the heirs of C. A. Smith of land The advertisement contained no other description of these several tracts. (2) Deed from the Smith heirs to R. T. Joyce for the third tract, 56.22 acres described by metes and bounds, and duly acknowledged. This deed was prepared some time after the sale for the purpose of tender to the defendant before suit. (3) Writing on the back of the printed notice of sale . (4) Writing on a separate sheet of paper (5) Writing on another separate sheet of paper "R. L. Smith and others (the plaintiffs herein) to R. T. Joyce, tract #3."
In order to constitute an enforceable contract within the statute of frauds, the written memorandum, though it may be informal, must be sufficiently definite to show the essential elements of a valid contract. It must embody the terms of the contract, names of vendor and vendee and a description of the land to be conveyed, at least sufficiently definite to be aided by parol. Gwathney v. Cason, 74 N.C. 5, 21 Am.Rep. 484; Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104, 107 Am.St.Rep. 474; Buckhorne Land & Timber Co. v. Yarbrough, 179 N.C. 335, 102 S.E. 630; Keith v. Bailey, 185 N.C. 262, 116 S.E. 729. The memorandum need not be contained in a single document but may consist of several papers properly connected together. As was said in Mayer v. Adrian, 77 N.C. 83: Simpson v. Lumber Co., 193 N.C. 454, 137 S.E. 311.
It is apparent that the separate papers offered by the plaintiffs as a compliance with the requirements of the statute are insufficient for that purpose. Neither the printed advertisement of sale nor the writing on the back thereof contains any description of the land, for the purchase of which the defendant is sought to be charged. No map was attached to or connected therewith or referred to therein. The other separate sheets of paper are not in themselves sufficient to show the essential elements of a contract. They were not physically connected, nor do they contain internal reference to other writings, so as to constitute a valid and sufficient memorandum within the meaning of the statute as interpreted by this court in the decisions cited. The deed, subsequently prepared and tendered before the institution of the action, was not connected with, nor did it refer to or contain reference to, any other paper in evidence.
"In order, therefore, to charge a party upon such a contract [to purchase land], it must appear that there is a writing containing expressly or by implication all the material terms of the alleged agreement, which has been signed by the party to be charged, or by his agent lawfully authorized." Keith v. Bailey, supra, 116 S.E. 730; Burriss v. Starr, 165 N.C. 657, 81 S.E. 929, Ann.Cas.1914D, 71; 25 R.C.L. 680.
In Ringer v. Holtzclaw, 112 Mo. 519, 522, 20 S.W. 800, 801, it is said: "All the authorities are agreed that the memorandum must state the contract with reasonable certainty, so that its essential terms can be ascertained from the writing itself, without resort to parol evidence."
The papers offered as constituting a written memorandum of the contract necessary to its validity must be held insufficient for that purpose on the further ground that they are not signed by the defendant or by any other person "by him thereto lawfully authorized."
While admitting there is no evidence that the defendant personally signed any of the papers offered in evidence in connection with the alleged contract of purchase, or that he expressly authorized any other person to do so for him, the plaintiffs contend that upon the principle of constructive or implied agency the defendant is bound by the fact that the auctioneer at the sale wrote defendant's name, in connection with recital of number of acres and price per acre, on the back of the printed advertisement of the sale.
The law seems to be well settled that the auctioneer at a sale is, at the time and for that purpose, the agent of both seller and buyer, and that when the auctioneer writes down at the time the name of the buyer on the paper writing showing the price bid for property therein described, it is a sufficient memorandum within the meaning of the statute of frauds upon which payment of the purchase price may be enforced. Cherry v. Long, 61 N.C. 466; Gwathney v. Cason, 74 N.C. 5, 21 Am.Rep. 484; Proctor v. Finley, 119 N.C. 536, 26 S.E. 128; Love v. Harris, 156 N.C. 88, 72 S.E. 150, 36 L.R.A.,N.S., 927, Ann.Cas.1912D, 1065; Flowe v. Hartwick, 167 N.C. 448, 83 S.E. 841; Woodruff v. Trust Co., 173 N.C. 546, 92 S.E. 496, L.R.A.1917E, 897.
But the facts here do not warrant the application of the principle stated in the cited cases. Here the auctioneer testified "I signed the memorandum (written on the back of the printed advertisement of sale) two or three days after the sale." As this witness' own signature appears on this paper, it is not clear whether he referred to writing his own name on the paper or that of the defendant. But assuming that the auctioneer wrote the name "R. T. Joice" on the paper writing referred to, the plaintiffs' evidence showed this was done several days after the sale, and that in the meantime the defendant, on the morning following the sale, had repudiated the purchase, on the ground of misrepresentation of the character of the tract of land on which he had bid, and had notified the sellers that he declined to complete the purchase. After...
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