Sterne v. Benbow

• Decision Date: 15 December 1909
• Citation: 66 S.E. 445,151 N.C. 460
• Parties: STERNE v. BENBOW. [*]
• Court: North Carolina Supreme Court

66 S.E. 445

151 N.C. 460

STERNE v. BENBOW. ^[*]

Supreme Court of North Carolina

December 15, 1909

Appeal from Superior Court, Guilford County; Long, Judge.

Action by M. W. Sterne against W. J. Benbow. Judgment for plaintiff. Defendant appeals. Partial new trial granted.

The measure of damages of a purchaser wrongfully kept out of possession of the land by the vendor is the rents and profits, the vendor being entitled to interest on the purchase money not paid, but the expense to the purchaser of bringing his family to the land and boarding them while kept out of possession is too remote.

Morehead & Sapp, for appellant.

King & Kimball, for appellee.

CLARK C.J.

The jury found in response to the issues submitted that the defendant contracted to sell, and the plaintiff contracted to buy, the lands referred to in the complaint and included in the survey set out in the complaint; that the defendant represented to the plaintiff, and guaranteed him that there were 100 acres in the tract, and the plaintiff, so believing was induced to contract to pay therefor $5,850; that, in fact, the tract contained only 78.83 acres; that the plaintiff would not have bought the lands if he had known at the time that the area was less than 80 acres; that the defendant falsely and fraudulently, in order to induce the plaintiff to buy the land, represented to him that the tract contained 100 acres, and the plaintiff, relying upon such representation, did purchase said land; that the plaintiff on account of the deficiency in the acreage, is entitled to an abatement in the price of $1,238.45, and is also entitled to recover $355 damages. Upon this verdict the court entered judgment that the defendant holds the lands described in the complaint, first, as a security for the balance of the purchase money, and next thereafter for the benefit of and to be conveyed with the joinder of his wife to the plaintiff on payment of the purchase money, to wit, $4,611.55, on account of the purchase price of the land less $100 paid November 12 1906, which sum the defendant is entitled to recover of the plaintiff less the further sum of $355 damages assessed by the jury, with interest on the balance from November 12, 1906, upon payment of which sum the said defendant will execute deed in fee (with the joinder of his wife in the conveyance), with the usual covenants of warranty, seisin, etc., and give possession therewith to the plaintiff.

This action is brought for the purpose of reforming an agreement entered into November 12, 1906, between the defendant and wife and the plaintiff, giving the plaintiff an option for the purchase of the said lands, to make it speak the truth, by inserting a guaranty alleged to have been given by the defendant and wife that the said tract contained 100 acres, and to procure specific performance by the execution of a deed for the correct number of acres upon payment of the agreed purchase price, reduced by a pro rata amount for the deficiency in the number of acres. It appeared in evidence that the defendant had advertised the land for sale in the "Greensboro Patriot" as containing 108 acres, and that he had listed it in writing, with a real estate agent as his agent to sell the same, as containing 108 acres, and that said agent so represented it to the plaintiff, and that the defendant in a personal interview with the plaintiff guaranteed that the tract contained 100 acres; that the tract of land consisted originally of three tracts, which had been bought by the defendant; and that, adding up the acreage set out in the three deeds to the defendant, the sum was between 75 and 80 acres. The defendant denied that he had guaranteed the number of acres, or that anything was omitted from the contract in evidence. When a contract is reduced to writing, parol evidence cannot be admitted to vary, add to, or contradict the same. But, when a part of the contract is in parol and part in writing, the parol part can be proven if it does not contradict or change that which is written. Nissen v. Mining Co., 104 N.C. 310, 10 S.E. 512, and citations in annotated edition. It is true, also, that an agreement for the conveyance of land is not binding unless reduced to writing and signed by the party to be charged, but a guarantee of the number of acres, like the receipt of the purchase money or recital of the consideration, is not required to be in writing. Sherrill v. Hagan, 92 N.C. 349; McGee v. Craven, 106 N.C. 356, 11 S.E. 375; Currie v. Hawkins, 118 N.C. 595, 24 S.E. 476; Quin v. Sexton, 125 N.C. 452, 34 S.E. 542; Brown v. Hobbs, 147 N.C. 77, 60 S.E. 716. In requiring, therefore, the plaintiff to show that the guarantee of the acreage was omitted from the instrument by mistake, the court placed an undue burden upon the plaintiff, but of this the defendant cannot complain. In a contract to convey or a conveyance of land, if there is a shortage in the number of acres, the grantee is not entitled to a pro rata abatement in the purchase price if both parties had equal source of information (which was not the case here), unless the vendee has taken a guaranty as to the number of acres. Smathers v. Gilmer, 126 N.C. 757, 36 S.E. 153. But this is what the plaintiff contends he did on this occasion, and the jury has found this issue in accordance with his testimony. It was optional with the vendee, in view of so material a shortage, to cancel the contract, or to take the deed with pro rata abatement in the price. 26 A. & E. (2d Ed.) 116.

The defendant contends that the verdict was inconsistent in finding on the third issue that the defendant believed the land contained 100 acres, and in...