Wade v. The City of Newbern

• Decision Date: 30 June 1877
• Citation: 77 N.C. 460
• Court: North Carolina Supreme Court
• Parties: AMOS WADE v. THE CITY OF NEWBERN.

77 N.C. 460

AMOS WADE

v.THE CITY OF NEWBERN.

Supreme Court of North Carolina.

June Term, 1877.

This was an Action to recover Damages for Breach of Contract, instituted in Craven and removed to and tried at Spring Term, 1874, of CARTERET Superior Court, before Clarke, J.

There was an appeal from the judgment of the Court below, and in this Court, the appeal was dismissed. Same case, 72 N. C. 498. At June Term, 1875, of this Court, the defendant moved to re-hear the case, and for a certiorari to bring up the case for review as on appeal, which motion was allowed. Same case, 73 N. C. 318. The facts appear in the opinion.

Messrs. D. G. Fowle, Geo. Green and Alex. Justice, for plaintiff .

Messrs. J. H. Haughton and Smith & Strong, for defendant .

BYNUM, J.

That the City of Newbern under its charter has the power to build a market house, is decided in Smith v. City of Newbern, 70 N. C. 14. It follows that it has the power of leasing a building for market purposes until one is built.

But the contract here declared on is void. It is a lease of real estate and is not in writing and signed by the party to be charged, or by any other person duly authorized to sign it, pursuant to the statute of frauds. Bat. Rev. ch. 64 § 2.

That statute provides that * * * “All other leases and contracts for leasing lands, exceeding in duration three years from the making thereof, shall be void unless put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.”

In the construction of this section of the statute (Laws 1868-'69, ch. 156, § 2) it is to be noted that it contains an important change of the same section, as it is expressed in the Rev. Stat. ch. 50, § 8, and in the Rev. Code, ch. 50, § 11, where the language is,--“Shall be void and of no effect, unless such contract or lease, or some memorandum or notethereof, shall be put in writing, &c.” It is clear since the Act of 1868-'69, no memorandum or note of a lease of land for more than three years, as distinguished from the lease itself, can bind the party to be charged, even should it be signed by him. It is a statute to prevent fraud, and it was supposed that this end would be more effectually accomplished by excluding from it, the words, “memorandum or note thereof,” which from their indefiniteness were often seized upon by the Courts to give effect to contracts, especially where there would be a real or apparent hardship in not giving effect to them. The statute as altered prescribes the limits of such contracts by a more rigid, but a more unerring, and therefore better rule.

As little as possible is left for construction. The lease or contract itself must be signed by the party to be charged. In this action the party sought to be charged, is the defendant.

In Rice v. Carter, 11 Ire. 298, A sold a tract of land to B, and gave him a bond for title. B verbally promised to pay for the land, the stipulated price; it was held, that while A was bound, B was not, because he was the party to be charged with the payment of the purchase money, but had not signed the contract, as required by Rev. Stat. ch 50, § 8. This case was subsequently affirmed upon the same point in Simms v. Killian, 12 Ire. 252, and in Mizell v. Burnett, 4 Jones, 249.

The material question then is,--Did the defendant sign the contract of lease, or cause it to be signed by any person duly authorized to sign it? As to this, the facts set out in the case stated for this Court, are these:--

On the 8th of March, 1879, the plaintiff, Wade, submitted to the Board of Councilmen of the City of Newbern, a proposition to lease to the City for a market house, his warehouse and lot for ten years, agreeing to first make certain repairs thereon. He also at the same time proposed to lease from the City, a certain water lot owned by it. He asked $1800 per annum rent for the warehouse, and offered $600 per annum rent for the water lot, which sum he proposed to deduct from the rent of the warehouse, leaving $1200, for the payment of which, he proposed to take each year thirty City bonds of $40 each, the bonds to be receivable by the City in payment of taxes or other dues. The record of the proceedings of the City Council, which were admitted in evidence, contains this entry in respect to these propositions;--

“After a lengthy debate, Mr. Wade's proposition in relation to the warehouse was received and adopted, and Union Point selected as the market site.” Subsequently other propositions modifying the foregoing were submitted by Mr. Wade, which were in like manner “received and adopted” by the Board. Up to this time, none of the propositions are stated to have been in writing.

On the 17th of March, 1869, some misunderstanding having arisen among the Board of Councilmen, as to the character of Mr. Wade's proposition, he was called before the Board, and he then submitted still other propositions; and the minutes of the Board contain this final entry upon the subject;--

“The foregoing being reduced to writing, and added to the original proposition made by Mr. Wade, on motion of Councilman Croom, the same was received and adopted. Mr. Wade presented to the Board, a lease containing the substance of the original proposition with the foregoing addition, and for a further binding of the contract between him and the Board. The lease being read, on motion of Councilman Croom, the same was adopted.

Councilman Howard presented the following resolution, viz; Whereas the lease of Amos...