Greenberg v. Bailey

187 S.E.2d 505 (1972) 14 N.C. App. 34

Abe GREENBERG
v.
Mr. & Mrs. Henry W. BAILEY (Bertha May Carden Bailey).

No. 7214DC109.

Court of Appeals of North Carolina.

March 29, 1972.

Nye & Mitchell, by Charles B. Nye, Durham, for plaintiff appellee.

C. Horton Poe, Jr., Durham, for defendant appellants.

GRAHAM, Judge.

Defendants assign as error the court's conclusion that Exhibits B, C, D and E constitute a sufficient memorandum of sale to comply with the statute of frauds. This assignment of error is overruled.

"All contracts to sell or convey any lands . . . 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. . . ." G.S. § 22-2. To comply with the statute it is not necessary that all of the provisions of a contract be set out in a single instrument. "The memorandum required by the statute is sufficient if the contract provisions can be determined from separate but related writings." Hines v. Tripp, 263 N.C. 470, 474, 139 S.E.2d 545, 548. "The writings must disclose, at least with sufficient definiteness to be aided by parole, the terms of the contract, the names of the parties, and a description of the property." 4 Strong, N.C. Index 2d, Frauds, Statute of, § 2, p. 62.

Exhibit D, entitled Sales Record and Settlement Sheet is sufficient to show that, on the date of the auction, a 70' × 130' lot was sold for defendants by the auction company to plaintiff for the sum of $10,000.00. The terms of payment are set forth as $1,000.00 cash, with the balance of $9,000.00 to be paid upon delivery of deed within 60 days. A specific description of the property is furnished by the plat (Exhibit E) which was physically attached by the auctioneer to the sales record and the other exhibits at the time they were executed. The male defendant conceded on cross-examination that the 70' × 130' lot shown on Exhibit E is the lot referred to in Exhibit D.

We hold that these exhibits, when construed together, are sufficient to show all of the essential elements of a contract of sale. The property sold is described, the parties are named, and the terms of the sale are clearly set forth. Our attention is directed to no essential feature of the contract which is left uncertain by the instruments which defendants admit they executed.

Defendants contend they should be relieved of their obligation under the contract because E. C. Bryson, Jr. mistakenly refunded to plaintiff the $1,000.00 cash payment intended for defendants' lot. This payment, which was included in a check for $5,000.00 given as a deposit on both sales, was returned when it was learned that the Carden sale would not be confirmed. Mr. Bryson testified that it slipped his mind that $1,000.00 of the check returned had been deposited as a cash payment on defendants' lot.

Plaintiff's Exhibit C establishes that Bryson was defendants' agent for the receipt of the cash deposit. At the time he returned the check to plaintiff, defendants had refused to close the sale or to accept the $1,000.00 cash payment or the total consideration for the lot. Plaintiff stands ready to comply with the contract. Under these circumstances, defendants are in no position to contend that "the deal is off" because the cash deposit was inadvertently returned by their agent.

Defendants argue that Exhibit B constitutes at most an offer by plaintiff to purchase, and that since plaintiff did not receive defendants' "purported written acceptance," as represented by Exhibits C, D and E, until after defendants' rejection of the offer had been communicated to him, no contract came into existence. This argument is untenable.

An "auctioneer at a sale is, at the time and for that purpose, the agent of both seller and buyer. . . ." Smith v. Joyce, 214 N.C. 602, 605, 200 S.E. 431, 434. The written instruments confirming the sale were delivered to the auctioneer and kept by the auction company as a part of its original records of the sale. In receiving the confirmation, the auctioneer was acting for the buyer as well as the seller and it was unnecessary that the instruments be actually delivered to the buyer in order for the contract of sale to be binding on the parties. When an owner sells real property through an agent, the owner is not required to sign the agreement or to communicate with the purchaser. Lewis v. Allred, 249 N.C. 486, 106 S.E.2d 689. Likewise when a purchaser buys real property through an agent it is not necessary that the agent deliver to him the written acceptance of his offer in order for a binding agreement to arise. "[A] principal is chargeable with, and bound by, the knowledge of or notice to his agent received while the agent is acting as such within the scope of his authority and in reference to a matter over which his authority extends, although the agent does not in fact inform his principal thereof." Norburn v. Mackie, 262 N.C. 16, 24, 136 S.E.2d 279, 285.

We have carefully reviewed all of defendants' assignments of error, including several we deem it unnecessary to discuss. In our opinion no prejudicial error has been shown.

Affirmed.

CAMPBELL and BRITT, JJ., concur.