Brannon v. Wood

79 S.E.2d 256 (1953)

239 N.C. 112

BRANNON v. WOOD.

No. 665.

Supreme Court of North Carolina.

December 16, 1953.

*257 No counsel for defendant, appellee.

Rufus K. Hayworth and E. F. Upchurch, Jr., High Point, for plaintiff appellant.

PARKER, Justice.

Interpreting the evidence in the light most favorable to the plaintiff, and giving to him the benefit of every inference which the evidence fairly supports the evidence of plaintiff tends to show these facts. According to a contract entered into by them the plaintiff delivered his Plymouth automobile to the defendant and paid him $350 in cash, on the purchase price of defendant's Oldsmobile automobile, and the defendant was to arrange the financing of the remainder due on the purchase price of the Oldsmobile automobile with the Industrial Finance Company of High Point. The contract was executory on the part of the defendant, who altogether failed to perform his part of the contract. The plaintiff did not take possession of the Oldsmobile automobile, but notified the defendant that he desired to rescind the contract, and get back his $350. The defendant refused, and still refuses, to give the money back to plaintiff.

It seems to us that the case should be submitted to the jury on the theory that if the plaintiff can show by the greater weight of the evidence that there was a contract as contended by him, that the defendant has failed altogether to perform his part of the contract, and that the plaintiff has rescinded the contract, then the plaintiff is entitled to recover back the $350 paid to the defendant as money had and received by the defendant to his own use, or as said in Hutchins v. Davis, 230 N.C. 67, at page 73, 52 S.E.2d 210, at page 214, "* * * he may resort to remedies calculated to place him in status quo. Thus, he can recover the purchase price or any portion of it he may have paid * * *." 12 Am.Jur., Contracts, p. 1028; 17 C.J.S., Contracts, § 442, page 926.

Neither the allegations of the complaint, nor the evidence offered by the *258 plaintiff will support a judgment for the arrest and incarceration in the common jail of Guilford County of the defendant, if the plaintiff recovers and an execution upon the judgment rendered is returned unsatisfied in whole or in part. G.S. § 1-409 et seq.

For the reasons set forth above the judgment of nonsuit is reversed.

Reversed.