Byrd v. Freeman

114 S.E.2d 715 (1960) 252 N.C. 724

Giles BYRD and Wife, Eloise W. Byrd,
v.
Lloyd FREEMAN and wife, Viola Freeman; J. K. Young and wife, Letcy Young; and W. J. Barefoot and wife, Frances W. Barefoot.

No. 603.

Supreme Court of North Carolina.

June 10, 1960.

Powell, Lee & Lee, Whiteville, for plaintiffs, appellees.

Proctor & Proctor and Powell & Powell, Whiteville, for defendants, appellants.

BOBBITT, Justice.

Defendants present one question: Did the court err in refusing to grant the motion for judgment of nonsuit made by defendants at the close of all the evidence?

All grounds asserted by defendants in support of their contention that their said motion for judgment of nonsuit should have been granted relate solely to matters involved in the first issue. Hence, discussion of evidence relevant only to the second and third issues is unnecessary.

"A contract, whereby one party, for a valuable consideration, grants to another an option on terms, conditions, and for a time, specified, to call for the doing of a certain act, constitutes an irrevocable offer which, on acceptance in accordance with its terms, gives rise to a contract that may be specifically enforced." 81 C.J.S. Specific Performance § 47; 49 Am.Jur., Specific Performance § 117; Williston on Contracts, Revised Edition, Vol. 5, § 1441; Bryant Timber Co. v. Wilson, 151 N.C. 154, 65 S.E. 932; Samonds v. Cloninger, 189 N.C. 610, 127 S.E. 706; First-Citizens Bank & Trust Co. v. Frazelle, 226 N.C. 724, 40 S.E.2d 367.

Uncontradicted evidence tends to show these facts: On the morning of September 26, 1958, Giles Byrd and Lloyd Freeman went upon the Freeman lands and identified the physical boundaries of the tract of ten acres, more or less, to be retained by the Freemans. The lines of this tract were to be surveyed in order to get the calls for a description by course and distance. Thereafter, the contract of September 26, 1958, was drafted by R. H. Burns, Jr., an attorney, and executed by defendants Freeman in Burns' office.

After execution of the contract, Bland, a registered surveyor, made a map of the tract to be retained by the Freemans in accordance with the physical boundaries as pointed out to him by Byrd. The tract shown on the Bland map contains 9.2 acres.

Prior to and on October 11, 1958, Freeman contended the Bland map was not in accord with the physical boundaries upon which he and Byrd had agreed; that the tract to be retained by the Freemans, if surveyed according to the agreed physical boundaries, contained 11.5 acres; and that the tract of 11.5 acres is shown on a map made by Schnibben, registered surveyor.

The difference between the two tracts is that the Schnibben map shows a triangular area south of the south line of the 9.2 acre tract shown on the Bland map. (Note: The evidence tends to show this triangular area of 2.3 acres was "woodsland" and was not relevant in determining the division of the crop allotments.)

The charge of the trial court was not included in the record on appeal. Hence, it is presumed that the jury was instructed correctly on every principle of law applicable to the facts. Hatcher v. Clayton, 242 N.C. 450, 88 S.E.2d 104.

A provision in the judgment indicates the jury found the 9.2-acre tract shown on the Bland map was in accordance with the physical boundaries upon which Byrd and Freeman had agreed. Moreover, there was evidence to the effect that, on the occasion of their tender on October 11, 1958, plaintiffs agreed to accept "the deed for the same lands that were later deeded to Barefoot," that is, a deed providing that the tract of 11.5 acres shown on the Schnibben map was excepted from the conveyance.

On this phase of the case, there was ample evidence for submission to the jury in connection with the first issue on these propositions: (1) Was the 9.2-acre tract surveyed in accordance with the physical boundaries agreed upon by plaintiffs and defendants Freeman prior to the execution of the contract of September 26, 1958? (2) If not, did plaintiffs, on the occasion of their tender, agree to accept a deed excepting from the conveyance the 11.5 acres shown on the Schnibben map? It appears that the jury resolved one or both of these questions against defendants.

As to crop allotments, uncontradicted evidence tends to show: Under regulations issued by the Secretary of Agriculture pursuant to the Agricultural Adjustment Act of 1938, as amended, U.S.C.A., Title 7, § 1281 et seq., referred to hereafter as the A.S.S. (Agricultural Stabilization Service) regulations, the division of crop allotments is made on the basis of cleared land. The Freeman lands included a total of nineteen acres of cleared land. The lands to be conveyed by defendants Freeman to plaintiffs included thirteen acres of cleared land and the land to be retained by defendants Freeman included six acres of cleared land. Each farm, after division, would have an allotment of one acre for peanuts. There were no corn allotments after 1958. The entire tobacco allotment was 3.1 acres and the entire cotton allotment was 1.7 acres. Upon division, the thirteen acres would have a tobacco allotment of 2.12 acres and a cotton allotment of 1.2 acres and the six acres would have a tobacco allotment of.98 acre and a cotton allotment of .5 acre. Thus, under A.S.S. regulations, plaintiffs would acquire a tobacco allotment of 2.12 acres instead of 3 acres and a cotton allotment of 1.2 acres instead of .0 acre. Conversely, defendants Freeman would retain a tobacco allotment of .98 acre instead of .1 acre and a cotton allotment of .5 acre instead of 1.7 acres.

Defendants contend the contract provisions as to crop allotments are in conflict with A.S.S. regulations and therefore "impossible of performance." On the other hand, plaintiffs contend it does not appear that leases or other legal instruments sufficient to perform the contract provisions and at the same time comply with A.S.S. regulations could not have been drafted Suffice to say, we accept, for present purposes, defendants' contention.

There was evidence tending to show that Byrd "wanted as much tobacco as (he) could get"; that in order to acquire a tobacco allotment of 3 acres he was willing for defendants Freeman to have the benefit of any and all allotments in respect of other crops; and that the provisions as to leases or other instruments were included in the contract to make effective this feature of the agreement.

When plaintiffs made their tender and demanded the deed on October 11, 1958, defendants Freeman refused to execute a lease. Freeman testified that, although he and Byrd had agreed upon a division of crop allotments as set forth in the contract, there had been no discussion of lease provisions and he did not know provisions relating thereto were in the contract until after he had signed it. Mrs. Freeman testified: "Mr. Byrd mentioned about a lease and he said he could get that tobacco if we leased it to him and I told him and my husband told him we would not lease it to him. We told him we wouldn't make any leases. We wanted our land in the clear. We wanted no ties on him, him no ties on us."

There was evidence that plaintiffs and defendants Freeman, prior to October 11, 1958, had been advised as to the division of crop allotments under A.S.S. regulations. When Freeman refused to execute a lease, Byrd testified that he (Byrd) agreed to take the land "without a lease," notwithstanding he would receive a tobacco allotment of 2.12 acres instead of 3 acres, but defendants Freeman still refused to comply with plaintiffs' demand for a deed.

This question is presented: May defendants now avoid the obligations of defendants Freeman under their contract with plaintiffs solely on the ground that, under A.S.S. regulations, their cotton allotment was smaller and their tobacco allotment was larger than contemplated by their agreement with plaintiffs?

Defendants Freeman did not at any time attribute their refusal to make a deed to plaintiffs to the fact that they would have less cotton allotment under A.S.S. regulations. On this phase of the case, the asserted ground of their refusal was their unwillingness to execute a lease (relating to the tobacco allotment) which would or might complicate their title to the retained acreage. Moreover, there is no evidence that defendants Freeman were adversely affected by said differences in the cotton and tobacco allotments. It is common knowledge that the value of the additional tobacco allotment of .88 acre to be gained by defendants Freeman under A.S.S. regulations was greater than the value of the cotton allotment of 1.2 acres to be lost. Indeed, this was frankly stated by counsel for defendants on oral argument.

"The remedy of specific performance will be granted or withheld by the court according to the equities of the situation as disclosed by a just consideration of all the circumstances of the particular case, and no positive rule can be laid down by which the action of the court can be determined in all cases." 49 Am.Jur., Specific Performance § 8; 81 C.J.S. Specific Performance § 3.

The contract of September 26, 1958, in its basic provisions, provided for the conveyance of described land for an agreed consideration. The provisions as to crop allotments were declared to be "a material part of the consideration" for the transaction. It was discovered that, in the event of such conveyance, A.S.S. regulations rather than the contract provisions would control the division of crop allotments. If performance were possible, these contract provisions would be advantageous to plaintiffs. Under these circumstances, it would be inequitable to deny to plaintiffs the remedy of specific performance on the unsubstantial ground that contractual provisions advantageous to plaintiffs rather than to defendants Freeman were "impossible of performance."

There was evidence tending to support a jury finding that the provisions of the contract of September 26, 1958, relating to crop allotments were inserted therein at the instance and for the benefit of plaintiffs; that plaintiffs, rather than defendants Freeman, were adversely affected by the fact that these contractual provisions could not be performed; and that plaintiffs waived such provisions and offered to accept a deed under which the division of crop allotments would be as provided in A.S.S. regulations. It must be assumed that the jury so found. Under these conditions, defendants Freeman had no legal right to refuse compliance with their contract to convey the lands simply because the contract provisions and A.S.S. regulations were in conflict in respect of crop allotments to the extent stated above.

It is noteworthy that, under agreement by plaintiffs, the decree of specific performance excepts the tract of 11.5 acres shown on the Schnibben map rather than the 9.2 acres shown on the Bland map.

After full consideration, we are of opinion, and so hold, that the evidence was sufficient for submission to the jury under appropriate instructions.

No error.