Wooten v. Walters

• Decision Date: 15 March 1892
• Citation: 14 S.E. 734,110 N.C. 251
• Parties: WOOTEN v. WALTERS et al.
• Court: North Carolina Supreme Court

14 S.E. 734

110 N.C. 251

WOOTEN v. WALTERS et al.

Supreme Court of North Carolina

March 15, 1892

Appeal from superior court, Lenoir county; E. T. BOYKIN, Judge.

Action by Simeon Wooten against John D. Walters and others to avoid a contract for the sale of real and personal property, and to recover such property. Exceptions were taken to the report of a referee, and from a judgment modifying the report sustaining an exception of defendants and overruling plaintiff's exceptions, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by MERRIMON, C.J.:

The following is a copy of the case settled on appeal: "The facts found by the referee are as follows: (1) That in the year 1889 the plaintiff and defendants formed themselves into a company and were incorporated under the name of the 'Kinston Oil-Mill Company,' for the purpose of manufacturing cotton-seed oil. (2) The plaintiff and each of the defendants agreed to take one-fourth each of the capital stock, and the company was organized, and the defendant J. D Walters was elected president of the company, and was the general superintendent of the business in erecting buildings machinery, and making the necessary preparation for commencing the manufacture of the oil. (3) That no certificates or other evidence of stock were ever issued by said company. (4) In November of said year 1889, and before the company was ready to commence operation, the plaintiff agreed with the defendant J. D. Walters to sell to him his stock of merchandise and two stores and lots, all being in La Grange, and was to take in payment therefor the interests of the said J. D. Walters and the defendant Alex. Sutton in the said oil-mill, the difference to be paid as it should appear on estimation. (5) The contract above mentioned was as follows: Walters was at the store of Wooten, and a proposition to trade was made, by which party is uncertain and whether the stores were then named or not is uncertain. They agreed to meet again that night. At night Walters went to Wooten's store, and after a while they agreed that the goods were worth twenty per cent. less than their original cost. They then immediately began to talk about the price of the stores, but did not agree as to their price. They then began to talk about the price of the oil-mill property. Walters said it was worth dollar for dollar for what had been put into the mill. Wooten thought he ought to make some reduction. Walters refused to do so. Then they began to talk again about the stores, but did not agree as to the price. At this point Walters said to Wooten, 'Do we understand each other?' Wooten said he thought so. Walters said, 'You are to take the oil-mill property at what it cost us, and I am to take the goods at 20 per cent. off first cost.' Wooten made no reply, but walked off to attend to some matter, came back, and they walked out of the store, and went to the pump, and got some water. Walters again named about the stores; Wooten asked $3,000; Walters offered $2,500. Before they separated they agreed on the price of the stores at $2,750, and Wooten then asked Walters when he wanted to take an inventory of the goods. (6) The contract was not reduced to writing, nor any note or memorandum thereof. (7) An inventory of goods was taken, and they amounted to $9,514.38. This amount, reduced six and one-fourth per cent would be the first cost of the goods, which is $8,919.73, (first cost.) This, reduced by 20 per cent., would leave $7,135.79, the price Walters was to pay Wooten for the goods. (8) After the inventory was completed, Wooten delivered the stores and goods into the possession of Walters. (9) Wooten took possession of the oil-mill property, completed the erection of machinery, etc., and operated the mill about two weeks, and then stopped running the mill, and about a week after informed Walters he should not carry out and complete the contract, and offered to return to him the mill property, and demanded of Walters the return of the stores and goods. (10) Walters has always been willing and able to perform his part of the contract, and several times so informed Wooten. (11) Wooten, after he stopped running the mill, sold off cotton-seed and other material, which belonged to the company before he and Walters traded, to the value of $1,834.18. (12) The mill, machinery, etc., can be put in as good condition as it was when Wooten took charge of it, at a cost of about $12. (13) The amount of mill property bought by Wooten from Walters, at the price agreed on, is $8,107.11. Therefore the accounts stand thus:

Wooten to Walters, --------- To mill property ......................................... $8,107 11 By merchandise ...................................................... $7,135 79 By two stores and lots ............................................... 2,750 00 To amount due by Walters .................................. 1,778 68 --------- --------- $9,885 79 $9,885 79 Wooten refusing to convey the stores, and deducting their value, Wooten will be due Walters ................................... $971 32

--(14) Walters had sold a considerable quantity of the goods before Wooten demanded their return. The stock of goods has been replenished with other goods, which, or a part of which, cannot now be separated from the original stock turned over by Wooten to Walters. Conclusions of law from the foregoing facts: (1) That the contract for the sale of the stores and the goods is an entire contract, and cannot be divided or apportioned. (2) That the plaintiff, Wooten, is entitled to recover the possession of the two stores and lots mentioned in the pleadings. (3) That the plaintiff, Wooten, is not entitled to recover the goods, or the value of them, from the defendants. (4) That the defendants are not entitled to have the contract enforced as to the stores and lots. (5) That the defendants are entitled to recover of the plaintiff $971,32, it being the amount paid plaintiff over the value of goods received from plaintiff."

The court sustained the defendants' exception to the first conclusion of law, and "adjudged that the said contract is divisible." The plaintiff filed exceptions as follows: "(1) Plaintiff excepts to conclusion of law No 3, that the plaintiff is not entitled to recover the goods, or the value of them, from the defendant, whereas he ought to have found that the plaintiff was entitled to recover the value of the goods, as he has found that the goods had been sold by the defendant J. D. Walters. (2) Plaintiff excepts to conclusion of law No.5, wherein he finds that the defendants are entitled to recover $971.32 from plaintiff, whereas he ought to have found that the plaintiff was entitled to recover of the defendant John D. Walters the value of the goods, to-wit, $7,134.78, and interest thereon." The court overruled these exceptions, and gave judgment as follows: "It is further adjudged that the report of the referee, as above modified, be and is confirmed. It is further adjudged that the plaintiff recover of the...