Jenkins v. Winecoff , 267 N.C. 639 ( 1966 )

148 S.E.2d 577 (1966) 267 N.C. 639

E. M. JENKINS, Sr.
v.
Joe W. WINECOFF, trading as Joe W. Winecoff Agency, Realtors.

No. 613.

Supreme Court of North Carolina.

June 16, 1966.

Thomas K. Spence, Concord, for plaintiff appellant.

Robert L. Warren, Concord, for defendant appellee.

BOBBITT, Justice.

The more serious question confronting us on this record is whether the court below had jurisdiction of plaintiff's action. This question is not discussed in the briefs. However, this Court considers the jurisdictional question ex mero motu. Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E.2d 644, and cases cited.

The Constitution of North Carolina, Article IV, Section 27, in pertinent part, provides: "The several justices of the peace shall have jurisdiction, under such regulations as the General Assembly shall prescribe, of civil actions, founded on contract, wherein the sum demanded shall not exceed two hundred dollars * * *" (Note: The amendment of Article IV, submitted by the 1961 Session Laws, Chapter 313, and adopted by vote of the people at the general election held November 6, 1962, has not, as of now, superseded or repealed the quoted constitutional provision. See Section 21 of said 1961 Act.)

G.S. § 7-63, in pertinent part, provides: "The superior court has original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given to some other court * * *"

G.S. § 7-121, in pertinent part, provides: "Justices of the peace shall have exclusive original jurisdiction of all civil actions founded on contract except—1. Wherein the sum demanded, exclusive of interest, exceeds two hundred dollars. * * *" Thus, "(b)y statute, exclusive original jurisdiction is given to a justice of the peace in contract up to two hundred dollars * * *." McIntosh, North Carolina Practice and Procedure, § 56, citing cases.

Plaintiff seeks to recover $200.00 and costs. If his action is "founded on contract," the superior court did not have jurisdiction thereof. Exclusive original jurisdiction was in the court of a justice of the peace.

Plaintiff's brief quotes from Peed v. Burleson's, Inc., 244 N.C. 437, 94 S.E.2d 351, an action involving the conversion of potatoes by a person having no title or interest therein. The facts in the present case are quite different. In Peed, no question relating to jurisdiction was involved.

Plaintiff's evidence is to the effect that, in accordance with the written contract, Bray gave defendant a check for $500.00 as a guarantee of compliance with his offer. While the written contract obligated defendant to return the $500.00 to Bray if plaintiff was unable to convey a good and marketable title, it contained no provision as to disbursement thereof in the contingency that arose, namely, the failure of Bray to comply with the terms of his offer. Having received the $500.00 lawfully, to be held subject to the terms of the oral contract between plaintiff and defendant and the written contract between plaintiff and Bray, the questions raised by the pleadings and evidence are the respective rights of plaintiff and defendant under said contracts to the $500.00 of "earnest money." Defendant paid plaintiff $300.00. If, under his pleadings and evidence, plaintiff is entitled to recover the remaining $200.00 from defendant, he is entitled to do so under and by virtue of the contractual relationships subsisting between them. We are of opinion, and so hold, that plaintiff's cause of action is "founded on contract." Therefore, exclusive jurisdiction thereof was and is in the court of a justice of the peace.

Present disposition of this appeal renders unnecessary any discussion relating to the merits of plaintiff's action. For a full discussion, see Annotation, "Relative rights and liabilities of vendor and his broker to down payment or earnest money forfeited by vendee for default under real estate contract," 9 A.L.R. 2d 495 et seq.

The judgment of involuntary nonsuit is affirmed solely on the ground it appears from plaintiff's allegations and evidence that the superior court had no jurisdiction of plaintiff's action.

Affirmed.

MOORE, J., not sitting.