Curtis v. Piedmont Lumber, Ranch & Mining Co. , 113 N.C. 417 ( 1893 )

MacRae, J.:

This is substantially the same action as that which was heard in this Court at September Term, 1891, and is reported in 109 N. C., 401. It was then held that there was no evidence to go to the jury to prove a contract in writing, signed by defendant’s officer, and hence the plea of the statute (section 683, requiring certain contracts of corporations to be in writing) should have been sustained. After the above decision the plaintiff submitted to a nonsuit in the Superior Court and brought the present action. The cause of action set out in this complaint is nearly identical with that in the former action.

The only question open, and which has not already been adjudicated, is whether the contract declared upon is such a one as should have been in writing, under section 683 of The Code.

When it was here before, the late Chief Justice Mkrbimon pointed out that the statute in question applies to executory contracts, and not to those in which defendants have availed themselves of property actually sold and delivered to them.

In the present action his Honor instructed the jury that if they believed the evidence, the plaintiff was entitled to recover. To this charge there was an exception, and we think there was error.

The testimony relied upon to prove that there was an executed contract, a sale and delivery, was that of the plaintiff himself, and was not clear upon this point.

If the plaintiff had testified to the sale and delivery of the logs, there being no testimony to the contrary, the instruction given by his Elonor would have been undoubtedly correct. But, without meaning at all to reflect upon the plaintiff, his testimony still leaves it unsettled whether the contract was an executed one or not, and is not so direct as to warrant the instruction given. New Trial.