Wellman v. Horn
| Decision Date | 22 November 1911 |
| Citation | 72 S.E. 1010,157 N.C. 170 |
| Parties | WELLMAN v. HORN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Cleveland County; Adams, Judge.
Action by E. A. Wellman against J. A. Horn. Judgment for plaintiff and defendant appeals. Affirmed.
O. Max Gardner and O. F. Mason, for appellant.
Ryburn & Hoey and Burwell & Cansler, for appellee.
This was an action for the specific performance of a contract to convey land, and to recover the balance of the purchase price. On October 3, 1910, the plaintiff contracted orally to sell his home place to the defendant for $10,000, one half payable January 2, 1911, and the other January 2, 1912. It was in evidence that soon afterwards the parties by agreement went to the First National Bank to get C. C. Blanton to witness the trade, and the defendant stated to Blanton in plaintiff's presence that he had bought plaintiff's home place for $10,000, and wanted Blanton to witness the trade, and wanted to make a payment to bind the trade, and suggested $50, but, upon the plaintiff objecting, the defendant then and there gave his note for $500 due January 2, 1911, to bind the trade. Blanton wrote the note, which defendant signed, and it was also witnessed by Blanton. It was also in evidence that thereupon the defendant asked the plaintiff for something to bind him; that the plaintiff gave a receipt for the $500 note, Blanton writing and witnessing it, and that, after the receipt was given, the defendant said: "Now, we had better call over the amount to be paid, and when it is to be paid"; and said "I am to pay the remaining part of $5,000 outside of this note on January 2, 1911, and I am to pay Wellman the remaining $5,000 on January 2, 1912."
It was further in evidence "that Blanton drew a bank deposit slip near him and wrote down what defendant said, as he stated it, the defendant standing on the right of Blanton and the plaintiff on the left, where both could see what he was doing, that, after Blanton wrote the memorandum, he said 'Boys, let's see if we understand this trade.' Then Blanton read over the following memorandum, which both parties agreed was correct:
There was evidence in corroboration and evidence contradictory of the above. The judge recited the above and the other evidence, and told the jury that if they should find that Blanton in the presence of the defendant wrote the memorandum at the request of the defendant embracing therein the terms of the contract, and thereafter read it to the parties, and that the defendant then agreed that the memorandum was a correct statement of the contract, they would find that Blanton was lawfully authorized by the defendant to make the memorandum, and would answer the first issue "Yes"; and, unless they so found, to answer the...
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