Reichler v. Tillman

203 S.E.2d 68 (1974)

21 N.C. App. 38

Robert J. REICHLER and Eric Schopler v. Albert T. TILLMAN and wife, Elizabeth R. Tillman.

No. 7415SC87.

Court of Appeals of North Carolina.

March 6, 1974.

*70 Winston, Coleman & Bernholz by Steven A. Bernholz, Chapel Hill, for plaintiffs-appellants.

James R. Farlow, Chapel Hill, for defendants-appellees.

PARKER, Judge.

Both motions were purportedly made under Rule 56 relating to summary judgments. The record on appeal, however, contains no affidavits, answers to interrogatories, or anything else other than the pleadings upon which to base decision. Therefore, the motions will be considered as though made under Rule 12(c) for judgment on the pleadings.

We first consider the trial court's ruling allowing the motion of the feme defendant. We find this ruling in error. Plaintiffs alleged that they "entered into a binding contract with defendants" for the purchase of the land. Both defendants denied this allegation, thereby raising the basic issue for decision in this case. It is true that the written "memorandum of said contract" which was incorporated by reference into the complaint made no reference to the feme defendant and was not signed by her. This, however, would not preclude plaintiffs from attempting to prove that the feme defendant was in fact a party to the contract. Our Statute of Frauds, G.S. § 22-2, expressly provides that the writing may be signed either "by the party to be charged therewith, or by some other person by him thereto lawfully authorized." Dealing with this statute, Denny, J. (later C. J.), speaking for our Supreme Court in Lewis v. Allred, 249 N.C. 486, 489, 106 S.E.2d 689, 692, said:

"The owner of real estate may sell such property through an agent, and when so acting the owner is not required to sign the agreement or to communicate with the purchaser. Moreover, the authority of a duly authorized agent to contract to convey lands need not be in writing under the statute of frauds. Wellman v. Horn, 157 N.C. 170, 72 S.E. 1010; 8 Am.Jur., Brokers, section 62, page 1019. The agent may sign the contract to sell and convey in his own name or in the name of his principal or principals. Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16; Neaves v. Mining Co., 90 N.C. 412, 47 Am.Rep. 529; Washburn v. Washburn, 39 N.C. 306; Oliver v. Dix, 21 N.C. 158. Furthermore, the authority of an agent to sell the lands of another may be shown aliunde or by parol. Hargrove v. Adcock, supra."

Thus, under the pleadings in this case, in which plaintiffs alleged and defendants denied that plaintiffs entered into a binding contract with both defendants, plaintiffs *71 are free to offer such evidence as they may have to show that the husband-defendant was authorized by his wife to act as her agent to contract to sell the lands belonging to both as tenants by the entirety. There was no necessity that plaintiffs allege that the contract was executed by the feme defendant through an agent. 3 Am. Jur.2d, Agency, § 343, p. 699; Annotation, 89 A.L.R. 895.

We next consider the trial court's ruling denying plaintiffs' motion for judgment in their favor on the feme defendant's counterclaim. This ruling we also find to be error. To recover for malicious prosecution the claimant must establish that the person against whom the claim is asserted (1) instituted or procured the institution of the proceeding against him, (2) without probable cause, (3) with malice, and that (4) the proceeding terminated in claimant's favor. Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122; Byrd, Malicious Prosecution in North Carolina, 47 N.C.L. Rev. 285. Since the claim does not arise until the termination of the prosecution upon which it is based, a counterclaim cannot be maintained to recover damages for the malicious prosecution of the action in which the counterclaim is asserted. Finance Corp. v. Lane, 221 N.C. 189, 19 S.E.2d 849. In our opinion no change in this regard has been effected by Rule 18 of the Rules of Civil Procedure, which is cited and relied on by appellees. That Rule applies to joinder of claims and remedies and not to counterclaims, which are controlled by Rule 13. The holding of Finance Corp. v. Lane, supra, seems still sound not merely on technical grounds but as a means of keeping lawsuits within manageable proportions.

The order appealed from is reversed and this cause is remanded to the Superior Court in Orange County for further proceedings not inconsistent herewith.

Reversed and remanded.

BRITT and VAUGHN, JJ., concur.