Tuttle v. Junior Bldg. Corp.

• Decision Date: 26 February 1947
• Docket Number: 22
• Citation: 41 S.E.2d 365,227 N.C. 146
• Parties: TUTTLE v. JUNIOR BLDG. CORPORATION.
• Court: North Carolina Supreme Court

41 S.E.2d 365

TUTTLE v. JUNIOR BLDG. CORPORATION.

227 N.C. 146

No. 22

Supreme Court of North Carolina

February 26, 1947

The plaintiff brought this action to secure specific performance of a contract for the purchase and sale of a building and lot in the Town of Walnut Cove owned by the defendant but not occupied by it.

The defendant is a corporation under the laws of this State, the Certificate of Incorporation containing the following paragraphs relating to the purpose of its organization and its powers:

'Third The objects for which this corporation is formed are as follows:

'To purchase that certain parcel of real estate now owned by Walnut Cove Council No. 211, Jr. O. U. A. M; to own and to operate; to lease, to rent; to execute leases for considerations; to transfer; assign; sell and convey this real property and/or to otherwise dispose of same.

'To purchase and/or otherwise acquire real and personal property; to own and operate; maintain; or dispose of the same by rent, lease or sale.'

The following were respectively officers, directors and stockholders of the corporation: 'J. G. H. Mitchell was President and Director; W. N. Wheeler was Vice-President and Director; Dr. C. J. Helsabeck was Second Vice-President and Director; W. F. Marshall, Secretary and Director; J. D Johnson, Treasurer and Director; J. J. Taylor, Director; R J. Scott, Director; C. E. Davis, Stockholder; and J. L Welch, stockholder; Dr. V. L. DeHart, stockholder.'

Negotiations for the purchase and sale of the property having been instituted the plaintiff made the following offer:

'October 22, 1945

Junior Order Building Corporation

Walnut Cove, N. C.

Gentlemen:

I hereby make the following offer for the building and lot which you now own in Walnut Cove, N. C., on Main Street which includes all the Old Mercantile Building and the Old P. O. Building.

I will give you $10,000 cash upon delivery of a good and sufficient deed. $500 check is herewith enclosed as part payment, leaving a balance of $9,500.

I am to receive possession of the property on November 1, 1945, and to receive all rents thereafter. I understand that you are to pay all taxes due including 1945.

I understand further that the Junior Order and the Masons are to have the use of the Hall same as they now have free for three years from July lst, 1945.

I am to have 30 days from the date of acceptance of this offer in which to make the final payment.

I am to assume the payment of Commissions to J. A. Dillon on this contract.

Yours very truly,

Ralph D. Tuttle,

R. D. Tuttle.'

W. F. Marshall, secretary for the defendant corporation, and Mr. Odell Jones came to see the plaintiff and told him that they had had a meeting and agreed to sell him the building provided he would rent two rooms of it to somebody for a shirt factory or knitting mill office. To this the plaintiff assented and the rental price was agreed upon.

Plaintiff testified that the directors and some stockholders met that afternoon and discussed the preparing of the deed and fixing up the papers, again stating that they had accepted plaintiff's offer provided they could get together on the rental agreement, which they did.

At tnat meeting there were present, Marshall, J. D. Johnson, the treasurer, C. J. Helsabeck, V. L. DeHart, and Joe Welch. Marshall said they wanted it drawn up and got ready as quickly as possible since they wanted to dissolve the corporation.

Plaintiff told him that he would have the money ready any time he could get the deed, but in the contract he had 30 days in which to take it up. Plaintiff testified, 'Mr. Marshall called me on Saturday afternoon and told me that Mr. R. J. Scott had prepared the deed and had it ready and I told him to mail it to the bank as per instructions and I got a letter from Mr. Marshall that afternoon or Sunday morning. A copy of the letter Mr. Marshall wrote the bank was sent to me. ' It is as follows:

'I am enclosing herewith a deed from the Junior Building Corporation, properly drawn and signed, to Mr. Ralph D. Tuttle deeding to him the property of the Junior Building Corporation. I am enclosing also herewith a contract from him to the town leasing unto the town the old postoffice building and the Red Cross room for a period of six months from November 1, 1945, for him to sign. Also there is enclosed a check from Tuttle Mor. Company to the Junior Building Corporation for $500; a part payment on the building. When he delivers to you a check for $9,500, I understand that it is in order for you to deliver him the deed.

I have heard nothing further from the shirt factory but since we have until Monday or Tuesday of next week to hear from the parties, we are withholding writing a check from the Town to Mr. Tuttle for the rent as stipulated by the contract. We will give them more time to let us hear from them before we go into the contract with the Town.

This is my understanding of the agreement and is in accordance with such instructions given to me by the stockholders of the Junior Building Corporation.

Yours very truly,

W. F. Marshall,

William F. Marshall.'

Pursuant to the letter the plaintiff went over to the bank on Tuesday morning after the deed and asked Mr. Johnson for it and gave him the balance of the money, $9,500. He was informed by Mr. Johnson that the deed had been withdrawn and was not there. Plaintiff was unable at that time to get any explanation.

The defendants offering no evidence, demurred to plaintiff's evidence and moved for judgment as of nonsuit. The motion was sustained and from the ensuing judgment plaintiff appealed.

P. W Glidewell, Sr., of Reidsville, A. C. Davis, of Greensboro,...