Sheppard v. Andrews

173 S.E.2d 67 (1970)

7 N.C. App. 517

Randall SHEPPARD and W. H. Anderson v. W. H. ANDREWS and wife, Nellie B. Andrews.

No. 7018SC33.

Court of Appeals of North Carolina.

April 1, 1970.

*69 Jordan, Wright, Nichols, Caffrey & Hill, by Luke Wright and Edward L. Murrelle, Greensboro, for plaintiffs-appellants.

Holt, McNairy & Harris, by R. Kennedy Harris and R. Walton McNairy, Jr., and McLendon, Brim, Brooks, Pierce & Daniels, by W. Erwin Fuller, Jr., Greensboro, for defendants-appellees.

PARKER, Judge.

Appellants assign as error the allowance of the motion for nonsuit as to the feme defendant. In this we find no error. Options, being unilateral in nature and imposing upon the optionee no obligation to buy, are to be construed strictly in favor of the optionor. Accordingly, it is generally held that time is of the essence in such agreements, and conditions imposed therein must be strictly performed in order to convert the optionee's right to buy into a contract for sale. Ferguson v. Phillips, 268 N.C. 353, 150 S.E.2d 518. The option agreement in the case before us expressly provided that it was to become void if plaintiffs failed to tender payment within the time specified. Plaintiffs' evidence fails to show any tender of payment made to the feme defendant within the time required by the option. No presumption that the husband is acting as agent for the wife arises from the mere fact of the marital relationship, Norburn v. Mackie, 262 N.C. 16, 136 S.E.2d 279, and no evidence was offered in this case from which the jury might find that the husband-defendant was his wife's agent for the purpose of receiving tender of payment or waiving timely tender of payment on her behalf. Therefore, the motion for nonsuit was properly allowed as to the feme defendant for the reason that plaintiffs' evidence would not support a jury finding of timely tender of *70 payment or of waiver of tender insofar as she was concerned.

Appellants urge error in the trial court's action in accepting the verdict and entering the judgment pursuant thereto that plaintiffs take nothing of the male defendant. In this regard appellants contend that the verdict was not unanimous because of the statement made by one of the jurors when the jury was polled. The record indicates, however, that upon further questioning the juror expressed unequivocal agreement with the verdict, and we find no error in the court's action in accepting the verdict. Trantham v. Elk Furniture Co., 194 N.C. 615, 140 S.E. 300; State v. Godwin, 27 N.C. 401.

Even if the jury had not found in defendant's favor upon the issues of tender and waiver of tender, in our opinion the plea in bar should have been sustained at the close of plaintiffs' evidence and the action dismissed because plaintiffs' evidence failed to identify the 4-acre tract which was the subject matter of the option. A contract to sell or convey land, or a memorandum thereof, within the meaning of the statute of frauds, G.S. § 22-2, must contain a description of the land which is the subject matter of the contract which is 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, 136 S.E.2d 269; Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; Buckhorn Land & Timber Co. v. Yarbrough, 179 N.C. 335, 102 S.E. 630. While the description employed in plaintiffs' option was sufficient to permit introduction of extrinsic evidence to identify and locate the 4-acre tract intended to be covered thereby, plaintiffs' proof failed to accomplish that purpose. The parties stipulated the defendants owned 40.77 acres, of which the 4 acres referred to in the option were a part. There was no evidence that any particular 4-acre tract ever existed separate and apart from the larger tract. There is an infinite variety of ways in which 4 acres can be carved out of the larger tract so as to front on "Clover Leaf of Mt. Hope Church and NC-85 and Kivett Road."

No error.

CAMPBELL and HEDRICK, JJ., concur.