Millikan v. Simmons

Annotate this Case

93 S.E.2d 59 (1956)

244 N.C. 195

B. Frank MILLIKAN v. Mrs. Tamzin L. SIMMONS.

No. 598.

Supreme Court of North Carolina.

May 23, 1956.

*62 Thomas Turner, Greensboro, for defendant-appellant.

King, Kleemeier & Hagan, Greensboro, for plaintiff-appellee.

HIGGINS, Justice.

The admissions of the parties in their pleadings and in their testimony eliminated issues 1 and 3 from controversy. The defendant having admitted the execution and delivery of the option justified a peremptory instruction to the jury to answer the first issue "yes." Rhodes v. Raxter, 242 N.C. 206, 87 S.E.2d 265; Davis v. Warren, 208 N.C. 174, 179 S.E. 329; Proffitt Mercantile Co. v. State Mut. Fire Ins. Co., 176 N.C. 545, 97 S.E. 476.

As to the third issue, the defendant admitted she delivered to the plaintiff the notice of cancellation dated July 23. Notice from her that she would not carry out the terms of the option as extended made unnecessary a tender of payment by the plaintiff. Douglass v. Brooks, 242 N.C. 178, 87 S.E.2d 258; Penny v. Nowell, 231 N.C. 154, 56 S.E.2d 428; Gaylord v. McCoy, 161 N.C. 685, 77 S.E. 959.

While the evidence of the parties was in agreement as to the first and third issues, their evidence was sharply in conflict on the vital second issue. The plaintiff testified that on July 13 he notified the defendant of his election to purchase the farm. She requested a postponement to which he agreed on condition the option should remain in force. She accepted the condition. The parties agreed the option should be extended for 15 days. This agreement was made on the 13th at the defendant's request and was reduced to writing on the 15th. The plaintiff contended his agreement to forego his right to close the transaction at once and receive his deed (continuing the defendant in possession) constituted sufficient consideration to support the defendant's agreement to extend the option.

The defendant testified in substance: Mr. Millikan came to her home on July 14; asked her if she still wanted to sell the farm. Upon receiving an affirmative answer, arrangements were made for a meeting on the 15th in his office to prepare the papers. On the 15th she notified his office she was ill and unable to keep the appointment. Whereupon, he came to her home, presented the extension agreement which she signed. She contended the original option had expired on the 13th and that the extension agreement was without consideration and amounted to nothing more than a new offer to sell which was subject to be withdrawn at any time before acceptance; and by her letter of July 23 she withdrew the offer. The defendant further contended the extension agreement, regardless of when made, was an agreement to sell land, required to be in writing, and the writing was not signed until the 15th, at which time the option had already expired. She contended also that the extension agreement is so vague, indefinite, and contradictory as to be unenforceable.

While a number of our decisions are to the effect that a contract to sell land must be in writing, the statement is not altogether accurate. G.S. ยง 22-2 provides: "All contracts to sell or convey any lands * * * shall be void unless said contract, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized." It is not necessary, therefore, that a writing be signed at the time a contract is made. "The writing is not the contract; it is the party's admission that the contract was made." *63 Wigmore on Evidence, 3rd Ed., Vol. 9, Sec. 2454, p. 175. It is sufficient if subsequent to the contract a memorandum thereof is reduced to writing and signed by the party to be charged. McCall v. Lee, 182 N. C. 114, 108 S.E. 390; Winslow v. White, 163 N.C. 29, 79 S.E. 258. The extension agreement, if made on the 13th and reduced to writing and signed on the 15th, would be enforceable between the parties as of the 13th. The defendant signed the writing. It refers to the original option by date and by description of the land, and concludes, "I hereby extend terms of the option for 15 days from this date. All other conditions to remain the same." The effect is to substitute July 30 for the date in the original option. The memorandum required may be more than one writing, provided they are connected by internal reference and when taken together their meaning is certain. Smith v. Joyce, 214 N.C. 602, 200 S.E. 431; Simpson v. Beaufort County Lumber Co., 193 N.C. 454, 137 S.E. 311; Mayer v. Adrian, 77 N.C. 83.

For the foregoing reasons the motion for judgment of nonsuit was properly overruled.

The assignments of error based on the charge on the second issue cannot be sustained. The trial court gave the substance of the evidence, fairly stated the contentions of the parties, and properly placed the burden of proof on the plaintiff. While the wording of the second issue leaves something to be desired, nevertheless, in view of the admissions in the pleadings and in the testimony of the parties, it embraced the essentials of the matters in dispute and is sufficient to support the judgment. Prejudicial error does not appear.

If the defendant found fault with either the court's review of the evidence or its statement of contentions, it was her duty to call the court's attention thereto before the jury retired. If she desired more specific instructions as to the law applicable to the case, she should have made a request by appropriate prayer. No legally sufficient reason is made to appear why the judgment should be disturbed.

No error.

DEVIN, J., took no part in the consideration or decision of this case.