Harper v. . Battle

The action is for specific performance of a contract of sale of a house and lot in Durham, N.C. and there was evidence on the part of plaintiff tending to show a definite contract in writing on part of defendant to sell and convey this house and lot on Watts Street in Durham, N.C. at the price of $8,650, the papers to be formally prepared and take effect as of 1 June, 1918, and breach of same by defendant.

There was denial of any valid contract, defendant contending that no sufficient writing had been given, and defendant alleged further and offered evidence tending to show an abandonment by the parties of any contract they may have made concerning the property, before action instituted. On issues submitted there was verdict for plaintiff. Judgment on the verdict, and defendant excepted and appealed. It is chiefly urged for error on the part of the defendant that there was no sufficient evidence of a written contract to convey on her part within the effect and meaning of the statute of frauds; and second, that on the entire evidence, if believed, there was an abandonment of the contract, and the court should have so instructed the jury, but, in our opinion, neither position can be sustained on the record presented. In reference to the first objection, the pertinent facts in evidence tended to show that in early part of 1918 defendant had agreed by parol to sell to plaintiff her house and lot in the city of Durham at the price of $8,650, one thousand dollars to be paid in cash, and the remainder evidenced and secured by notes and deed of trust on the property, the papers to be prepared and to take effect as of 1 June of said year. That on 7 March plaintiff drew a check in favor of defendant for $50 in terms as follows:

DURHAM, N.C. March 7, 1918.

THE FIDELITY BANK.

Pay to the order of Mrs. Lee Battle, $50.00. Fifty and no/100 dollars. Payment on Watts Street House.

(Signed) MRS. J. E. HARPER.

That said check was collected by defendant, her written endorsement, "Mrs. Lee Battle," having been made and entered on the check for the purpose. It further appeared by the admissions of defendant's answer, put on evidence that after making the verbal agreement to sell the house and lot in question, "defendant, on or about 1 June, 1918, executed a deed for the property described in the complaint, and delivered the same to her attorney at Durham, N.C. and at the same time defendant had her attorney prepare a deed of trust describing the property, and notes, all bearing date, 1 June, 1918, for plaintiff and her husband to execute," etc. On these facts our decisions are to the effect that either the check given in part payment on the bargain, collected by defendant through her written endorsement made thereon, in which the property is described as the "Watts Street House," or the written deed, describing the property, formally prepared by defendant, and left with her attorney for delivery on receipt of the price as agreed upon, is a sufficient memorandum in writing within the intent and meaning of the statute of frauds, and this exception of defendant must be overruled. Pope v. McPhail, 173 N.C. 238; Vinson v. Pugh,173 N.C. 190; Flowe v. Hartwick, 167 N.C. 448; Norton v. Smith,179 N.C. 553; Lewis v. Murray, 177 N.C. 17; Bateman v. Hopkins,157 N.C. 470. In reference to the deed, it was held in Vinson v. Pugh,supra, "That where a vendor of land has executed a deed reciting the consideration and expressed in conformity with a parol contract of sale theretofore made, and has given the deed to her agent to be delivered on payment of the agreed purchase price, it is a sufficient writing within the meaning of the statute of frauds." And on the sufficiency of the description as contained in the check, the cases of Norton v. Smith and Lewis v. Murray, and the numerous authorities therein cited, show that the same is a full compliance with the statutory requirements on the subject.

The second objection is without merit. While there is much evidence on the part of the defendant tending to show an abandonment of the contract by the parties, there is evidence for the plaintiff to the contrary, and these opposing views were submitted to the jury on the issue as to abandonment, and they have determined the matter for the plaintiff. The clear and correct charge of his Honor is in full accord with our decisions on the subject, and we find no reason for disturbing the verdict of the jury on the issue. Robinet v. Hamby, 132 N.C. 353-356, citing Miller v. Pierce,104 N.C. 389, and Faw v. Whittington, 72 N.C. 321. True, that after making the parol contract of sale, the parties seem to have had considerable discussion as to which of them should pay the taxes for 1918. The agreement being silent on that question, the position taken by plaintiff would seem to be correct, as the taxes became a lien on the property on 1 June. Consolidated Statutes, 7987; Rev., 2864. But however that may be, the difference referred to was only as to the effect and meaning of the contract the parties had made, and in no way involved or affected its existence or validity.

We find no error in the record in defendant's appeal, and the judgment for plaintiff is affirmed.

No error.

PLAINTIFF'S APPEAL.