Yaggy v. BVD COMPANY ( 1970 )

173 S.E.2d 496 (1970) 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 his 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 itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers. * * * If the description is sufficiently definite for the court, with the aid of extrinsic evidence, to apply the description to the exact property intended to be sold, it is enough." Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269. In the case before us the reference to property "subject to reacquisition from Montvale" makes it possible to apply the description to the exact property intended to be sold. It may well be that the words, "subject to reacquisition from Montvale," were inserted in the telegram for the purpose of protecting B. V. D. in event it should experience difficulties in reacquiring the property; they serve as well to identify exactly what property was intended.

Appellant also contends its motion for nonsuit should have been allowed because plaintiff's evidence disclosed that there was never a meeting of the minds of the parties, that the "offer" which appellant's telegram purported to accept was to be a written memorandum to be signed by the purchaser and accompanied by a good faith deposit of $25,000.00, and that these were never sent. While it is true that all of the evidence shows that for some time after the telegram was sent the attorneys for the parties were engaged in drafting a written document which was to embody all of the terms agreed upon, including such matters as the date of closing and the date possession of the property was to be delivered, and that this instrument was never signed, we do not agree that such evidence must compel a judgment of nonsuit. The statute of frauds does, of course, require that all essential elements of the contract be reduced to writing. The telegram in this case does clearly identify the vendor, the vendee, the purchase price, and, so we have held, the property sold. These are the essential elements of the contract. "A memorandum of an agreement for the sale of land is not necessarily insufficient to satisfy the requirements of the statute of frauds because the time for performance is not stated therein. In the case of an executory contract of sale, where the time for the execution of the conveyance or transfer is not limited, the law implies that it is to be done within a reasonble time, and the failure to incorporate in the memorandum such a statement does not render it insufficient." 49 Am.Jur., Statute of Frauds, § 356, p. 667. The fact that in the present case the attorneys for the parties were engaged in drafting and were attempting to agree upon the language of an instrument which would spell out in detail not only the essential but also the subordinate features of the agreement, does not compel the conclusion that the minds of the parties had never met upon those features which were essential to form a binding contract. Upon all of the evidence in this case, whether the parties had a meeting of the minds on the terms of a valid contract was a question for the jury. The jury has answered the issue in favor of the plaintiff.

Finally, appellant questions Rader's authority to bind B. V. D. by the telegram of 18 July 1968. This is not a problem relating to the statute of frauds, since the statute expressly recognizes that the writing which it requires may be signed by an agent, and it has long been established that the authority of the agent to do so need not be in writing. Johnson to Use of Adams v. Sikes, 49 N.C. 70; 37 C.J.S. Frauds, Statute of § 212, p. 706. Rader himself testified that he had actual authority from his superiors, including an Executive Vice-President of B. V. D., to accept plaintiff's offer. Such direct testimony by the agent is competent to prove agency, as well as to prove its nature and extent. Sealy v. Albany Insurance Co., 253 N.C. 774, 117 S.E.2d 744.

We do not consider the contract for sale invalid because not approved by B. V. D.'s Board of Directors. There was ample evidence from which the jury could find that the decision had been reached at the highest levels of the B. V. D. corporate management to sell the Carrboro property, which was only one of many properties belonging to the corporation throughout the country; that this decision had been consistently adhered to for many months; that Rader, whose duties normally included dealing with corporate real properties, had been expressly authorized by top management officials to seek a sale of the property; that the sale to plaintiff and the telegram confirming it were expressly authorized by the same top officials; that before the telegram was sent its exact language was cleared with the corporation's legal department; that nothing in the negotiations leading up to sending the telegram or in the telegram itself suggested that the deal was being made conditioned upon obtaining a future approval of the B. V. D. Board of Directors; and that no mention of the need to obtain Board approval was made until after B. V. D. had received a higher offer for the property. Indeed, it is clear that it was not the Board of Directors, but the same top management officials who authorized making the contract with plaintiff, who decided to repudiate it.

While it is true that no officer or agent of a corporation has power, by virtue of his office alone, to sell or contract for the sale of corporate real property, "[n]evertheless, the power of a corporate officer or agent to contract for the sale of the corporate lands does not necessarily have to be conferred by a formal resolution of the board of directors, but may, as in case of other power, be inferred from the conduct of the corporation in the transaction of its business and the power which the corporation has customarily permitted the officer or agent to exercise." 19 Am.Jur.2d, Corporations, § 1227, at p. 640. As stated by Barnhill, J., speaking for the Court in Tuttle v. Junior Building Corp., 228 N.C. 507, 512, 46 S.E.2d 313, 317:

"The rule limiting the authority of officers in respect to the sale of real property is not, however, inflexible. * * In determining whether the rule must be applied, the business in which the corporation is engaged, the duties necessary to be performed by its officers, the relation of the property dealt with to the business and to its other property, the surrounding circumstances and the principle that corporate officers have `the implied power, in the absence of express limitations, to do all acts on behalf of the corporation that may be necessary or proper in performing' their duties must be considered."

Under all of the circumstances, Rader's authority to act on behalf of B. V. D. in sending the telegram was essentially a question of fact for the jury and they have answered under instruction free from prejudicial error.

We have also examined appellant's remaining assignments of error, and in the entire trial find

No error.

CAMPBELL and HEDRICK, JJ., concur.