DocketNumber: No. 863SC773
Citation Numbers: 85 N.C. App. 690
Judges: Arnold, Orr, Phillips
Filed Date: 5/19/1987
Status: Precedential
Modified Date: 11/27/2022
Plaintiffs sued defendants in summary ejectment for wrongfully occupying two tracts of land on Harkers Island that they owned as tenants by the entireties. Defendants counterclaimed alleging that they were in lawful possession of the property under a written contract to buy it and that plaintiffs had breached the agreement. Several months after suit was filed and following a hearing at which affidavits, maps, letters, and checks were presented into evidence, the court dismissed defendants’ counterclaim by an order of partial summary judgment. In effect the court’s order is based upon three major findings —that the alleged contract to sell real estate is not evidenced by an executed written memorandum as required by the statute of frauds; that the writing relied upon, a check endorsed by Calvin Rose, but not Esther M. Rose, does not describe sufficiently the property to be conveyed and does not refer to anything extrinsic from which the description can be found; and that in the negotiations and transactions involved neither the male plaintiff nor attorney Nelson W. Taylor was the agent of the femme plaintiff, who signed no writing of any kind. Obviously, if either of these findings is valid defendants’ counterclaim cannot possibly be won, and the court properly dismissed it; for one clear basis for dismissing a claim by summary judgment is the non-movant’s inability to support an essential element of his claim with evidence, Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E. 2d 795 (1974), and it is elemental law that a contract for the sale of real estate in this state must be supported by a paper writing which complies with the statute of frauds and that when the property involved is owned by two people it must be shown that each owner either executed, authorized or approved the writing or writings relied upon. Even so, neither of the court’s findings was validly made in our opinion, and we vacate the order.
Though the court’s other finding—that there was no executed written memorandum of the alleged contract to buy or sell real estate—was properly addressed by plaintiffs affidavit, it was adequately responded to by defendants’ affidavits, checks, letters
*694 This $5K on account of Boat Works Complete $360K — and 3 Attached lots — $30K — seller financing $365K —15 years — $3,702.00 monthly (Boat Works) and $1,000.00 every 6 months 3 Lots —Closing A.S.A.P. for N.M.L. Boatbuilders, Inc.
Isl Calvin Rose
Plaintiff Calvin Rose scratched out the “and $1,000.00 every 6 months” notation, cashed the check, and permitted defendants to take possession of the two tracts of land allegedly comprising the boat works; and from time to time thereafter he also acquiesced in several requests to delay the closing. On 13 November 1984 Lang gave Rose a $3,000 check which he accepted, endorsed and cashed; it had the following notation typed on the back above the endorsement:
This $3,000 on account of Boat Works complete—$360,000 with all tools except hand, and 3 attached rear lots —$30,000 —, Total $390,000 Seller financing $365,000 15 Years at 9°/o. Paid $5,000 8 Oct —Ck no 1948, & this no. 2131 — 31 Nov = $8,000 Balance ($25,000 total down required) $17,000 —Closing ASAP for NML Boatbuilders
Isl Calvin Rose
Thereafter defendant company moved its boat building business to plaintiffs’ property on Harkers Island and spent approximately $72,500 in improving the property. Defendants also delivered the following checks to Rose, each of which was endorsed and cashed: 16 January 1985 ($2,500); 5 February 1985 ($1,000); 28 February 1985 ($2,000); 18 March 1985 ($500); 26 March 1985 ($300); and 29 March 1985 ($700). By letter dated 5 April 1985 Lang notified plaintiffs’ lawyer that defendants were ready to close the transaction upon receiving a certificate of title, but complained about a derelict boat named “Linda Gale” being left in the boat basin and about some tools, other than “hand tools,” being removed by Mr. Rose. By letter to Mr. Lang dated 10 April 1985 Mr. Taylor made the following points or statements: The tools that were to go with the sale were only those on the list given him several months earlier, which did not mention hand tools; the Roses’ patience with Lang unduly delaying the closing had reached its limit; an understanding needed to be reached about the three extra lots not covered by the original contract, and he proposed that defendants
Leaving aside the agency and property description issues not raised by plaintiffs’ evidence in the court below, defendants’ forecast of proof, when viewed in its most favorable light for them as the law requires, is sufficient in our opinion to establish that a written memorandum in compliance with G.S. 22-2 was signed by both the plaintiff Calvin Rose and the defendant Ted Lang. That neither signed the form contract prepared by Mr. Taylor is not decisive; for the statute of frauds does not require all the provisions of the contract to 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 (1965). The necessary memorandum in this case can consist, if the jury so finds, of the several checks that both Rose and Lang signed, along with the unsigned contract, the maps and letters, which the checks obviously relate to. These writings and the other evidence support the inference that Calvin Rose agreed in writing to sell the two boat works tracts to the defendants for $360,000, and the three other lots behind the boat works for $30,000, with $25,000 being paid at closing and the remaining $365,000 being paid in monthly installments over a fifteen year period at 9% interest. The evidence supports the inference that the parties agreed as to the sale and purchase of the two boat works tracts when defendants’ $5,000 check was accepted, as the same terms are stated for those lots in both the unsigned contract, prepared at plaintiffs’ direction, and on defendants’ check signed by both Lang and Rose, after which Calvin Rose permitted defendants to occupy those lots. The evidence also supports the inference that after rejecting defendants’ offer to buy the three additional lots by paying $1,000 thereon every six months, made by their initial check, that plaintiffs accepted the offer made by the 13 November 1984 check to pay the $30,000 purchase price in monthly installments over a fifteen year period with 9% interest.
Since the record before us does not clearly establish that there is no genuine issue of material fact to try in regard to
Vacated and remanded.