Carr v. Good Shepherd Home, Inc.

152 S.E.2d 85 (1967)

269 N.C. 241

Sam C. CARR v. The GOOD SHEPHERD HOME, INC.

No. 706.

Supreme Court of North Carolina.

January 20, 1967.

*87 Frink & Gore and E. J. Prevatte, Southport, for plaintiff.

Herring, Walton, Parker & Powell, Southport, for defendant.

BRANCH, Justice.

The decisive question on this appeal is: Did the trial judge err in granting defendant's motion for nonsuit?

*88 "In order to constitute an enforceable contract within the statute of frauds, the written memorandum, though it may be informal, must be sufficiently definite to show the essential elements of a valid contract. It must embody the terms of the contract, names of vendor and vendee and a description of the land to be conveyed, at least sufficiently definite to be aided by parol." Smith v. Joyce, 214 N.C. 602, 200 S.E. 431. See also Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833. The writing relied on by plaintiff was sufficiently definite to show the essential elements of a valid contract. "`A written option offering to sell, at the election of the optionee, can become binding on the owner by a verbal notice to the owner * * *.'" Burkhead v. Farlow, 266 N.C. 595, 146 S.E.2d 802.

This Court held in the case of Hudson v. Cozart, 179 N.C. 247, 102 S.E. 278: "`The doctrine is fundamental that either of the parties seeking a specific performance against the other must show, as a condition precedent to his obtaining the remedy, that he has done or offered to do, or is then ready and willing to do, all the essential and material acts required of him by the agreement at the time of commencing the suit, and also that he is ready and willing to do all such acts as shall be required of him in the specific execution of the contract according to its terms.' * * * `The party seeking aid of the court, as actor, must not only show that he has complied with the terms so far as they can and ought to be complied with at the commencement of the suit, he must also show that he is able, ready, and willing to do those other acts which the contract stipulates for as a part of its specific performance.'" Here plaintiff has not shown that he has complied with the terms of the written memorandum or that he is ready and willing to do all such acts as shall be required of him in the specific execution of the contract according to the terms of the written memorandum. He has sought to show by amendment to his complaint another oral agreement between the plaintiff and the defendant which departs from the essential terms of the written memorandum. The amendments to plaintiff's complaint are as follows:

"THREE: That immediately upon receiving the proposal from the defendant, plaintiff advised the defendant of his acceptance of the proposed contract, and did then obtain from defendant an agreement giving the defendant the option of either paying in cash as stated in the proposal or selling certain of the lots and using the proceeds from the sale or sales, as the needs might require, to pay the purchase price. "FOUR: That, acting with the full co-operation and knowledge of the defendant and in conformity with said contract and agreement as set out above in Paragraph Three, plaintiff negotiated a sale of Lots 11 and 12, Block 104, and Lots 11 and 12, Block 103, with Charles A. Leach and wife, Edith C. Leach, at and for a total purchase price of Three Thousand Five Hundred ($3,500.00) Dollars; that said purchase price was paid by Charles A. Leach and wife and plaintiff directed the defendant to make a deed direct to Charles A. Leach and wife, which was done by deed dated 26 July, 1959, and thereafter recorded in Book 138 at Page 195, Records of Brunswick County; that plaintiff did not retain any part of the purchase price, but rather had the total amount applied to the contract of purchase between him and the defendant, as referenced above; that by following through with the deed of conveyance to Charles A. Leach and wife and by acceptance of the purchase price from said sale negotiated by plaintiff with Charles A. Leach and wife, as referenced above, the defendant did then and there ratify the contract with plaintiff."

The record does not reveal that any evidence was offered by the plaintiff to prove the subsequent agreement alleged in paragraph Three of his amended pleadings.

*89 The plaintiff cannot recover on the agreement which he alleged in his amended complaint and which he attempted to prove by the introduction of certain written instruments because there is no written note or memorandum signed by the defendant which his allegations in the amended complaint or his evidence tends to establish.

In the case of Keith v. Bailey, 185 N.C. 262, 116 S.E. 729, the owner of land entered into a contract with defendant by a written memorandum agreeing to convey lands. The defendant failed to purchase the lands and the plaintiff brought action for damages. At the trial the plaintiff testified to a parol agreement which did not correspond with the written memorandum, but was inconsistent with its terms. Holding that the plaintiff was not entitled to recover, the Court said: "The plaintiff cannot recover on the memorandum or receipt (even if it be otherwise sufficient), because it does not embody the entire contract, nor on the agreement to which he testified at the trial, whether considered independently of or in connection with the receipt, because in either event is there no written note or memorandum signed by the party to be charged and embracing all the essential terms of the contract which the evidence tends to establish."

"It is settled law in North Carolina that an oral contract to convey or to devise real property is void by reason of the statute of frauds (G.S. § 22-2). * * * Upon a plea of the statute, it may not be specifically enforced and no recovery of damages for the loss of the bargain can be predicated upon its breach. * * * Where the pleadings raise the question of the statute of frauds, that defense is not waived by a failure to object to the parol evidence on the trial." Pickelsimer v. Pickelsimer, 257 N.C. 696, 127 S.E.2d 557. The defendant pleaded the statute of frauds, thereby preventing the enforcement of oral contract to convey.

The written memorandum on which plaintiff must depend in order to make out his case is the letter dated February 28, 1958, addressed to the plaintiff. Plaintiff's attempted proof constitutes an essential variance and departure from the terms of this written memorandum.

For reasons stated, the judgment of the court below is

Affirmed.