Yaggy v. B. V. D. Co.

• Decision Date: 06 May 1970
• Docket Number: No. 7015SC9,7015SC9
• Citation: 173 S.E.2d 496,7 N.C.App. 590
• Parties: Edward E. YAGGY, Jr. v. The B.V.D. COMPANY, Inc. and Montvale Realty Corp.
• Court: North Carolina Court of Appeals

Page 496

173 S.E.2d 496

7 N.C.App. 590

Edward E. YAGGY, Jr. v. The B.V.D. COMPANY, Inc. and Montvale Realty Corp.

No. 7015SC9.

Court of Appeals of North Carolina.

May 6, 1970.

Certiorari Denied June 12, 1970.

Bryant, Lipton, Bryant & Battle, by Victor S. Bryant, Jr., Chapel Hill, for plaintiff appellee.

Graham & Cheshire, by Lucius M. Cheshire, Hillsborough, and John T. Manning, Manning & Allen, Chapel Hill, for defendant appellants.

PARKER, Judge.

The North Carolina statute of frauds, G.S. § 22--2, insofar as pertinent to this appeal, provides:

'All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.'

Defendant appellant did not specially plead the statute of frauds but in its answer denied the alleged contract to convey. The general denial invoked the statute as effectively as if had been expressly pleaded and thereby imposed upon plaintiff the burden of showing a written contract sufficient to comply with its requirements. Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545; Hunt v. Hunt, 261 N.C. 437, 135 S.E.2d 195; Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557; Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561. Moreover, defendant's failure to object to testimony as to an oral contract did not waive the defense of the statute. Pickelsimer v. Pickelsimer, Supra; Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331. 'The protection of the statute extends not only to the performance of the contract, but to its discovery as well. (Citation.) To show a parol agreement, when a written one is required, is to fall short of the necessary proof.' Jamerson v. Logan, Supra.

The only evidence in writing of the contract which plaintiff seeks to enforce in this action is the telegram set out in the complaint. The telegram bears defendant's name in print, placed thereon by the same mechanical process employed by the telegraph company in reproducing other portions of the message. The question is presented whether a telegram to which the vendor's name has been so affixed may be considered as having been signed by the vendor within the meaning of our statute of frauds. We hold that it may.

'The signing of a paper writing or instrument is the affixing of one's name thereto, with the purpose or intent to identify the paper or instrument, or to give it effect as one's act.' McCall v. Textile Industrial Institute, 189 N.C. 775, 128 S.E. 349. This is usually accomplished when a person affixes him name in his own handwriting, in such case the very act clearly evidencing the intent of the signer. Affixing one's handwritten signature, however, it not the only method by which a paper writing may be considered as being signed within the meaning of the statute of frauds. As long ago as Lord Ellenborough's opinion in Schneider v. Norris, 2 M. & S. 286, 105 Eng.Rep. 388, decided in 1814, it has been recognized that a printed name may constitute a sufficient signing under the statute of frauds, provided that it is recognized by the party sought to be charged. The courts of this country have generally recognized the same principle. The Supreme Court of Arizona in Bishop v. Norell, 88 Ariz. 148, 353 P.2d 1022, stated the rule as follows:

'We are fully satisfied that the general rule is that a writing or memorandum is 'signed' in accordance with the statute of frauds if it is signed by the person to be charged by any of the known modes of impressing a name on paper, namely, by writing, printing, lithographing, or other such mode, provided the same is done with the intention of signing. City of Gary v. Russell, 123 Ind.App. 609, 112 N.E.2d 872; Cummings v. Landes, 140 Iowa 80, 117 N.W. 22; Weiner v. Mullaney, 59 Cal.App.2d 620, 140 P.2d 704; Irving v. Goodimate Co., 320 Mass. 454, 70 N.E.2d 414, 171 A.L.R. 326; Potter v. Ritchardson, 360 Mo. 661, 230 S.W.2d 672; In re Deep River Nat. Bank, 73 Conn. 341, 47 A. 675.'

Other recent cases in which the typewritten name of the seller has been found to constitute a sufficient signing within the meaning of the statute are Dubrowin v. Schremp, 248 Md. 166, 235 A.2d 722, and Radke v. Brenon, 271 Minn. 35, 134 N.W.2d 887. The same rule has been adopted in the Restatement of the Law of Contracts, § 210, which provides:

'The signature to a memorandum under the Statute may be written or printed and need not be subscribed at the foot of the memorandum, but must be made or adopted with the declared or apparent intent of authenticating the memorandum as that of the signer.'

In Joseph Denunzio Fruit Co. v. Crane (D.C.), 79 F.Supp. 117 (reversed on other grounds upon rehearing in (D.C.), 89 F.Supp. 962), a teletype message was recognized as 'signed' by the party to be charged, within the meaning of the California statute of frauds, and in Hefferman v. Keith (Fla.Ct. of App.1961), 127 So.2d 903, the court answered defendant's contention that a telegram was not sufficient under the statute because it was not a signed copy, by pointing out that the defendant, having admitted the sending of the telegram, thereby admitted the authority of the telegraph company to affix his name thereto. See also 49 Am.Jur., Statute of Frauds, § 326.

In the case presently before us no question has been raised as to the authenticity of the telegram or that it was sent by the witness Rader while purporting to act on behalf of defendant appellant. Under such circumstances we hold that, insofar as Rader's actions in the matter could be binding upon defendant, defendant appellant's name affixed to the telegram constituted a signing of the telegram by defendant within the requirement of the statute of frauds. Before discussing the question raised as to Rader's authority, it is necessary that we deal with certain other contentions made by the appellant.

Appellant contends that in any event the telegram fails to meet the requirements of the statute of frauds in that there is a patent ambiguity in the description of the property to be conveyed. In support of this contention appellant points out that it holds interests in two distinct tracts of land in Carrboro, N.C., separated by streets of the town, and from this appellant argues that it is impossible to know from the language of the telegram with certainty whether the parties were contracting with reference to one tract or the other or with reference to both. Had the description in the telegram consisted only of the words 'BVD PROPERTY IN CARRBORO, NOCAR,' there might be merit in appellant's contention. The telegram, however, is much more explicit. It refers to the 'BVD PROPERTY IN CARRBORO NOCAR SUBJECT TO REACQUISITION FROM MONTVALE REALTY CORP' (emphasis added), and it is possible to ascertain with absolute certainty exactly what 'BVD property in Carrboro' is 'subject to reacquisition from Montvale.' This is the property formerly owned by B.V.D., conveyed by it to Montvale, and which by recorded lease it has a right to reacquire from Montvale. The recorded lease describes by exact metes and bounds the property which is thus subject to the reacquisition rights. Therefore, in this case the public record itself discloses the exact property to which the telegram refers. The parties have stipulated that this is the same property as described in plaintiff's complaint. A written memorandum sufficient to comply with the requirements of the statute of frauds 'must contain a description of the land, the subject-matter of the contract, either certain in...