Parks v. Jacobs

129 S.E.2d 884 (1963)

259 N.C. 129

Julia Mae PARKS v. Ruby D. JACOBS and Joseph Jacobs.

No. 178.

Supreme Court of North Carolina.

March 20, 1963.

*885 E. R. Temple, Smithfield, for plaintiff-appellant.

No counsel contra.

PER CURIAM.

The written option given by defendants to plaintiff was not offered in evidence. The parties are, however, in agreement as to its terms. Defendants' obligation to convey was conditioned upon plaintiff's payment of $12,750 to Ruby Jacobs on or prior to 19 August 1955 and the execution of purchase money notes for the balance secured by deed of trust on the property to be conveyed. The contract delineated by the testimony was not, as plaintiff alleges, a bilateral contract to buy and sell, but a unilateral contract or option which could be converted into a bilateral contract when, and only when, the optionee had complied with the terms of the option. Winders v. Kenan, 161 N.C. 628, 77 S.E. 687.

The evidence shows H. C. Westbrook secured the option for plaintiff and was her agent charged with responsibility of consummating the purchase. He testified plaintiff executed purchase money notes and deed of trust and provided him with funds necessary to make the cash payment. The fact that plaintiff was able to pay, standing alone, was not sufficient to bind defendants. The option also required a monetary payment. Plaintiff had the burden of showing payment or a tender and refusal to accept. Wachovia Bank & Trust Co. v. Medford, 258 N.C. 146, 128 S.E.2d 141; Winders v. Kenan, supra.

Westbrook, plaintiff's witness to establish acceptance of the option by plaintiff, was asked specifically if he tendered the money to Mrs. Jacobs. His reply was he took the money out of the bank and carried it to the office of Mr. Sommersill, his attorney. He sought to get defendants to come to Sommersill's office to consummate the sale. Feme defendant, owner of the land, refused to go. This evidence was insufficient to establish a tender, for a "`tender' imports not merely the readiness and the ability to pay or perform, but also the actual production of the thing to be paid or delivered over, and an offer of it to the person to whom the tender is to be made." Bane v. Atlantic Coast Line R. R., 171 N.C. 328, 88 S.E. 477; Hall v. Jones, 164 N.C. 199, 80 S.E. 228; Anderson v. Stewart, 149 Neb. 660, 32 N.W.2d 140, 3 A.L.R.2d 250; 86 C.J.S. Tender § 18, pp. 567-568.

The option did not require defendants to go to the office of plaintiff's attorney. Plaintiff had the deed prepared by her attorney. She was entitled to require execution contemporaneously with a tender; but defendant was not required to go to plaintiff or her attorney so that a tender could be made.

Plaintiff makes no contention that she personally made a tender to defendants. Her statement was: "Within the ten-day period, Mr. Westbrook, my agent, made a tender of the money to Mrs. Jacobs." Immediately following that statement she said: "It was made in Mr. Sommersill's office where the papers were all drawn up and waiting for her signature and of course she wasn't to get the money until she signed the deed."

It is not suggested that plaintiff was in Sommersill's office. All the testimony negatives the idea that feme defendant, *886 owner of the property, ever went to Sommersill's office. Hence plaintiff's statement that Westbrook made a tender within the ten-day period in Sommersill's office is a mere conclusion which she drew from what Sommersill told her. It is an erroneous conclusion, one impossible under the physical facts, hence without probative value. Jones v. Schaffer, 252 N.C. 368, 114 S.E.2d 105.

Affirmed.