Hurdle v. White

239 S.E.2d 589 (1977) 34 N.C. App. 644

D. T. HURDLE
v.
Raymond T. WHITE and Thomas L. Jones.

No. 761SC997.

Court of Appeals of North Carolina.

December 21, 1977. Certiorari Denied March 7, 1978.

Twiford, Seawell, Trimpi & Thompson by C. Everett Thompson, Elizabeth City, for plaintiff-appellant.

White, Hall, Mullen & Brumsey by Gerald F. White and John H. Hall, Jr., Elizabeth City, for defendants-appellees.

Certiorari Denied by Supreme Court March 7, 1978.

PARKER, Judge.

The question presented by this appeal is whether the check was a sufficient memorandum of the contract to meet the requirements of our statute of frauds, G.S. 22-2, which provides that "[a]ll contracts to sell or convey any lands . . . 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

. . .." We hold that under the facts of this case the check endorsed by White was a sufficient memorandum of the contract, and accordingly we reverse the judgment dismissing plaintiff's action.

A memorandum, by its very nature, is an informal instrument, and the statute of frauds does not require that it be in any particular form. A check can be a sufficient memorandum, provided it contains expressly or by necessary implication the essential elements of an agreement to sell. Annot., 153 A.L.R. 1112 (1944); Annot., 20 A.L.R. 363 (1922). A signature endorsed on the back of such a check has been held to be a sufficient signing. Harper v. Battle, 180 N.C. 375, 104 S.E. 658 (1920). Essential elements of an agreement to sell include a designation of the vendor, the vendee, the purchase price, and "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." Lane v. Coe, 262 N.C. 8, 12, 136 S.E.2d 269, 273 (1964).

In the present case the check was clearly adequate to identify the vendor and the vendee, and the purchase price was unequivocally stated as being $45,000.00. The amount of the purchase price was not rendered fatally uncertain, as defendants contend, because the check did not of itself establish whether the $500.00 paid by the check was intended as a down payment to be applied against the purchase price or was intended only as consideration for granting the option. The writing clearly stated the price for the land, and parol evidence was competent to ascertain the intended application of the $500.00 payment. Moreover, although the price to be paid is certainly an essential element of a contract for the sale of land, our Supreme Court has held that where, as in the present case, the vendor is the party to be charged, our statute of frauds does not require that the price be stated in writing. Lewis v. Murray, 177 N.C. 17, 97 S.E. 750 (1919); Bateman v. Hopkins, 157 N.C. 470, 73 S.E. 133 (1911); Thornburg v. Masten, 88 N.C. 293 (1883). Thus, in the present case parol evidence was in any event competent to establish the purchase price.

The land was described on the check as being the "rest of Tuttle tract." The designation of a tract of land by its popular name has long been recognized as sufficient under the statute of frauds to permit the introduction of extrinsic evidence to identify the particular tract intended. Cherry v. Long, 61 N.C. 466 (1868) (Land described as "Rayner tract" held sufficient); Simmons v. Spruill, 56 N.C. 9 (1856) (land described as the "William Wynn farm" held sufficient); Annot., 23 A.L.R. 2d 6, at p. 32-39 (1952). See also Smith v. Low, 24 N.C. 457 (1842). In the present case plaintiff introduced in evidence a deed dated 24 October 1969 from Thomas L. Jones, Commissioner, to defendant White and his wife, Della (who is now deceased), recorded in Deed Book 59, Page 603 in the office of the Register of Deeds of Perquimans County. This deed described the lands conveyed thereby as follows:

The Tuttle tract containing 431.5 acres as described and delineated on a plat prepared by T. J. Jessup, Register (sic) Surveyor entitled "Charlie Frank White-Tuttle Tract— Craney Island— 431.5 acres, Belvidere Township, Perquimans County, North Carolina" which plat is now duly recorded in Plat Book 4 on page 93 in the office of the Register of Deeds of Perquimans County . . ..

Plaintiff also introduced in evidence the plat above referred to recorded in Plat Book 4 on page 93. This plat shows the boundary lines, marked by courses and distances and by reference to adjoining property owners, of a tract of land which is designated thereon as the "Tuttle Tract 431.5AC." No question was raised as to the accuracy or authenticity of this plat. Plaintiff also presented evidence that the tract of land shown on the plat was commonly known in the community as the "Tuttle Tract" and that no other property in the county was known by that name. Plaintiff's evidence thus shows that the words "Tuttle Tract" appearing on the check refer to a well-known and unique tract of land; that a deed has been recorded conveying that tract by that name to defendant White; that there is no other tract in Perquimans County known by that name; and that the Tuttle tract can be clearly identified and accurately located upon the ground by reference to the metes and bounds description on the recorded plat.

Defendants nevertheless contend that even if the description is sufficient as to a tract of land in Perquimans County, the failure of the description to pinpoint the location of the tract by "village, town, city, county, state or country" amounts to a patent ambiguity. We do not agree. The transaction must be evaluated in light of the circumstances of the parties.

"The presumption is strong that a description which actually corresponds with an estate owned by the contracting party is intended to apply to that particular estate . . . ."

. . ."When all the circumstances of possession, ownership and situation of the parties, and of their relation to each other and the property, as they were when the negotiation took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement."

Lewis v. Murray, 177 N.C. 17, 20-21, 97 S.E. 750, 752 (1919). See also Norton v. Smith, 179 N.C. 553, 103 S.E. 14 (1920). Here, plaintiff and defendant White were both citizens and residents of Perquimans County, and all the facts point inescapably to the conclusion that the "Tuttle tract" refers to a specific, clearly identified tract of land in Perquimans County. For other cases in which the omission of the town, township, or county has not been held to have created a patent ambiguity, see Harper v. Battle, supra (the location on the memorandum apparently referred to the location of the bank rather than the location of the land); Gordon v. Collett, 102 N.C. 532, 9 S.E. 486 (1889); Thornburg v. Masten, supra.

Having concluded that the words "Tuttle tract" refer to a specific tract of land, we turn now to an examination of the entire description on the check which reads, "rest of Tuttle tract." The words "rest of" indicate that the description applies to only a portion of the Tuttle tract. "A contract to convey, excepting a part of the land described, is valid provided the land excepted can be identified." Kidd v. Early, 289 N.C. 343, 354, 222 S.E.2d 392, 400 (1976). Admittedly, the mere words "rest of," standing alone, fail to identify the portion of the Tuttle tract which is to be excluded, but those words take on a clear meaning when interpreted in light of the circumstances of the parties and the land. See Lewis v. Murray, supra; Norton v. Smith, supra. At the time of the transaction, the defendant no longer owned the entire Tuttle tract because he had earlier conveyed an 89.99-acre portion of that tract to the plaintiff. The deed regarding that transaction was introduced into evidence and clearly indicated the portion of the Tuttle tract which had already been conveyed to the plaintiff. Defendant no longer owned the entire Tuttle tract, and it was therefore impossible for him to convey the entire tract to plaintiff in this transaction. Plaintiff's earlier purchase of part of the Tuttle tract leads to the conclusion that the "rest of [the] Tuttle tract" refers to all of that tract which was still owned by defendant on the date of the transaction.

The memorandum makes no mention of time of performance or manner of payment, but omission of those terms is not fatal. Where no time of performance is stated, the law implies that the option must be exercised within a reasonable time. Lewis v. Allred, 249 N.C. 486, 106 S.E.2d 689 (1959); Yaggy v. B. V. D. Co., 7 N.C. App. 590, 173 S.E.2d 496 (1970); Hardee's Food Systems, Inc. v. Hicks, 5 N.C.App. 595, 169 S.E.2d 70 (1969). Where the contract fails to specify the manner and form of payment, the contract is construed to require payment to be made in cash simultaneously with tender or delivery of the deed. Kidd v. Early, supra.

Furthermore, the language of the memorandum is adequate to show that there was a meeting of the minds of the parties sufficient to establish the existence of a contract. See Chason v. Marley, 224 N.C. 844, 32 S.E.2d 652 (1945). Although a contract may be held invalid if material portions are left open for future agreement, Kidd v. Early, supra, we have held that the memorandum in this case contains the essential elements of a contract. While it is true that plaintiff sought to have an option drafted later which was to include all of the terms of the transaction, the memorandum contains all of the essential terms required by the Statute of Frauds, and later negotiations regarding subordinate features of the agreement do not negate the existence of a contract. Yaggy v. B. V. D. Co., supra.

Therefore, we conclude that the memorandum in the form of a check in this case contained only a latent ambiguity, that extrinsic evidence was admissible to aid the court in applying the description to the exact property to be sold, and that plaintiff offered sufficient extrinsic evidence to require submission of the case to the jury. Upon a new trial, defendants will have the opportunity to present evidence in support of the allegations in their answer pleading that the option was obtained by actual fraud and misrepresentation. Upon the record before us, their motion for directed verdict should have been denied.

Reversed and remanded.

MARTIN and ARNOLD, JJ., concur.