Winders v. Hill

• Decision Date: 28 May 1906
• Citation: 54 S.E. 440,141 N.C. 694
• Parties: WINDERS v. HILL et al.
• Court: North Carolina Supreme Court

54 S.E. 440

141 N.C. 694

WINDERS v. HILL et al.

Supreme Court of North Carolina

May 28, 1906

Appeal from Superior Court, Duplin County; W. R. Allen, Judge.

Action by J. B. Winders against E. J. Hill and others. From a judgment overruling a demurrer to the complaint, defendants appeal. Modified and affirmed.

Defendant wrote H. that, if he could handle defendant's real estate so as to net defendant a certain sum, he might do so within four months, and the letter stated that, if H. should meet with some success in selling the land about the end of four months, defendant would give an extension, and the letter stated "this note should be used as an option to purchase," and thereafter H. sold the land, purporting to act as agent for defendant. Held, that H. acted as agent for defendant, and it was not contemplated that H. should himself buy the land.

This action was brought by the plaintiff for the purpose of compelling specific performance of a contract which he alleges was made by the defendant with him, and by which the latter agreed to convey to him a tract of land described in the contract as follows: "Situated in Warsaw township Duplin county, N. C., extending from the corporate limits of Warsaw to the Boyette Mineral Spring and lying on both sides of the Williams road, adjoining the lands of W. L. Hill, W H. Williams, and others, and containing 2,500 acres excepting 100 acres in the immediate vicinity of what is known as the 'Boyette Mineral Spring,' located near the Williams road and on the branch immediately adjoining the Williams land." It is alleged in the complaint that by correspondence which is fully set out, the defendant either appointed the plaintiff his agent to sell or gave him an option to buy the land according as the correspondence should be construed, the agency or option to continue from June 6 1905 to October 7, 1905. We will state the material parts of the correspondence and exhibits. In June, 1887, the defendant, then about to leave the state to reside in San Francisco, appointed his brother, I. F. Hill, of Durham, N.C his attorney for the following purpose: "To ask, demand, sue for, recover, and receive all such sums of money, debts, goods, wares, and other demands whatsoever, which is or shall be due me or owing, payable and belonging to me in any way or manner, either at law or in equity; to take possession of, rent out, lease, sell, bargain, grant, and convey upon such terms, in such quantities and at such prices (as he may deem most beneficial to my estate) all my interest, right or title in certain lands and real estate located in said county of Duplin (describing the tract in controversy and other land); and generally to do, execute and perform all such acts, deeds, matters and things touching my entire estate and effects, both real and personal, as shall and may be requisite and necessary to be done and performed for the prudent management of my property and the profitable conduct of my business, as fully and effectually in all respects and to all intents and purposes as I myself might or could do if personally present. I, the said Edward J. Hill, hereby ratifying and confirming all the acts and things done by my said attorney lawfully in pursuance of these presents." On May 23, 1905, the defendant wrote from San Francisco, Cal., to L. F. Hall, at Pocomoke, Md., as follows: "Some time last summer you were making an effort to purchase my land near Warsaw. If you are in a situation to handle it, advise me. I am anxious to dispose of the property, although the price of land is rising in that section." Hall replied: ""Your favor of the 5th to hand and I note what you say in same. Now I will say that I believe I can handle your property and make sale of the same at the price of $18,000, but when you place a higher consideration on it, you drive away contemplated buyers from you. Now if you feel inclined to give me an option on your property, say from four to six months, I may be able to take parties down to whom I may be able to close out the whole." To this the defendant replied by letter dated June 6th as follows: "Yours of May 29th to hand, and if you can handle my property so as to net me $20,000 you are at liberty to do so. This offer is good for four months from this date. There are somewhere in the neighborhood of 2,500 acres of it. The amount I will not guarantee, probably it would turn out to be considerably more on a survey. From this offer is excluded 100 acres in the immediate vicinity of what is known as the 'Boyette Mineral Springs,' located near the Williams road, and on the branch immediately adjoining the Williams land. This I wish to reserve, so as to show my identity in the county. This note should be used as an option to purchase. P. S. Of course, should you meet with some success in selling it about the end of four months, and wish an extension of time, I will give it to you. In case you do not meet with encouragement from your prospective buyer, advise me, as I have some parties wishing to buy the timber if I cannot sell the land." Hall, in a letter of June 13th acknowledged the receipt of the ""option" and expressed a fear that the price was too high for any profit to him, but agreed to try and see what could be done at the price fixed, and intimated that he might want more time within which to sell. In a letter of July 17th he states that he had looked over the property with certain parties, who asked for a reduction of the price and were told by him that $20,000 was the limit price unless defendant would make a concession, and he would see what could be done. He then inquired if defendant would take a certain part in cash, the purchaser to have the privilege of paying the balance by cutting the timber and paying the defendant $2 per thousand for the same to be applied at that rate to the purchase money until all is paid. To this the defendant, by letter of July 27th replied: "As to the price of the land, I do not feel that I can knock off anything whatsoever. Upon the question of cash and time payments, I suggest you write me what is the best you can do. I want as much cash as I can well get, and the balance can go at the highest rate of interest allowable in North Carolina, interest payable annually. Write me at once what are the best terms you can give. I have some other purchasers for this property. I put my prices down so low that I thought it would be grabbed up at once. I suggest that you take the matter up with my brother, Isham F. Hill at Durham, but should you see fit to write him, send me a copy of the letter so that I can be in communication with him. You might take a trip to Durham to see him. Let me hear what you can do." On July 29th and before he had received any answer to his last letter, Hall sold the land to the plaintiff and his associates for $20,000, collected $100 of the purchase money, and gave them the following receipt: "Received of a syndicate, composed of J. B. Winders and others, the sum of one hundred dollars, as part payment on tract of land near Warsaw, N. C., belonging to E. J. Hill, of San Francisco, Cal., and by authority from said E. J. Hill, dated June 6, 1905, authorizing me to sell the same for him so as to net him $20,000, I have this day sold to the said syndicate of J. B. Winders and others the said land of E. J. Hill, as agent for said Hill, as per authority contained in same. The lands are said to contain 2,500 acres more or less, and do not include the mineral springs and one hundred acres reserved with same. Balance of purchase money to be paid by October 7, 1905, as may be agreed upon by said Hill and purchasers. [ Signed] L. F. Hall, Agent." Hall also assigned to them the option of June 6th. On the same day he sent to defendant the following telegram: "Closed deal for your lands as per option"--and also mailed to him a letter giving the details of the sale and inclosed a check for the $100 and a receipt to be signed by the defendant for the $100, which also set forth the terms of the sale and provided that upon payment of the balance of the purchase money, on or before October 7, 1905, the defendant should make title to the purchasers.

The plaintiff then alleges that upon receipt of the said telegram and letter of July 29th the defendant notified his brother I F. Hill, who lived in Durham, that he had sold his lands to the plaintiff for $20,000, and I. F. Hill thereupon notified a party in Warsaw to the same effect; that a few days afterwards a real estate company in Wilmington offered I. F. Hill an advance of $2,000 on the price, or $22,000 for the land, and thereupon I. F. Hill came to see the plaintiff, and as agent of the defendant, his brother, and stating that he was acting in that capacity, offered the plaintiff $500 to release the defendant from the contract made by L. F. Hall for the sale of the land to him; that this offer the plaintiff declined; that I. F. Hill then conferred with the said real estate company and in a few days called again to see the plaintiff, and, acting as agent of the defendant and so representing himself to be at the time, offered to give the plaintiff $1,500 if he would release the defendant from the contract, which the plaintiff refused to do and insisted on a deed for the land under the contract. Thereupon the said I. F. Hill stated to plaintiff that he had a telegram from his brother, placing the lands at his disposal, and he then offered to resell the land to the plaintiff; but the latter declined to make any agreement with him and again insisted on the fulfillment of the contract he had made with Hall. I. F. Hill then stated that he had authority to sell the land and to make a deed therefor, and he intended to do so, and that plaintiff could sue the defendant for damages, but that he...