Burriss v. Starr, 165 N.C. 657 (1914)

May 20, 1914 · Supreme Court of North Carolina
165 N.C. 657


(Filed 20 May, 1914.)

1. Statute of Frauds — Contracts to Convey — Written Promise — Bills and Notes.

It is not required by tbe statute of frauds tbat tbe writing necessary to enforce an agreement for tbe conveyance of lands should be “subscribed” by tbe owner; but it is necessary tbat it should contain a promise of some sort by tbe owner to make tbe conveyance upon tbe payment by tbe purchaser of tbe consideration agreed upon (Revisal, sec. 976) ; therefore tbe acceptance by tbe owner of a promissory note given by tbe purchaser, and stated to be for tbe amount of tbe purchase price of lands, will not alone be a sufficient compliance with tbe statute; and there being no valid contract, it follows tbat damages may not be recovered for a breach thereof.

2. Contracts Under Seal — Consideration Implied.

A compromise of a controverted matter is a sufficient consideration to uphold an agreement, ancl especially is this true when tbe party seeking to avoid it receives a substantial benefit thereunder, as in this case, having a cloud upon bis title to lands removed ^and where a note under seal has been received by bim from tbe other party, under a compromise agreement, tbe seal itself imports an enforcible consideration, and tbe note will not be declared invalid for a want thereof.

Appeal by defendant from Olina, J., at November Term, 1913, of Catawba.

This action was brought by plaintiff for tbe specific performance of a contract, wbicb be says was made by tbe defendant, to convey to bim for $600 a tract of land known as tbe dower of Mrs. Starr. Tbe only written evidence of tbe contract offered by tbe plaintiff was parol proof of tbe contents of a note, wbicb bad been lost,’ given in 1909 by bim to tbe defendant for tbe land, and payable in annual installments, witb interest from 1 January, 1910. Tbe note was prepared by tbe defendant at bis borne and sent to tbe plaintiff, wbo signed it and returned it to defendant. Plaintiff testified tbat they were negotiating for a settlement of tbe matter, and be told defendant. tbat, while be preferred to have tbe land, if defendant *658would give him, $400 and pay back the amount, $130, which he had paid on the note, that he would let him have the land. Defendant declined this proposal, and offered to pay plaintiff $200 and the $130 he had paid on the note, with interest. They parleyed about the matter and finally agreed upon a settlement, by which defendant agreed to give plaintiff his note for $200 and pay the $130 with interest in cash. The note was given for the $200, dated 11 January, 1913, and payable 1 November, 1913, with interest at 6 per cent until paid; but the $130, with interest, was not then paid. Plaintiff stated two causes of action in his complaint: one for the breach of the contract to convey and damages, and the other for specific performance of the contract. He proposed to testify, in his own behalf, that he was induced to settle with defendant by reason of the latter’s statement, at the time, that he (defendant) could hold the land, defendant being a lawyer. This was excluded.

At the close .of the evidence, defendant moved the court for judgment of nonsuit, under the statute, as to the first cause of action, and afterwards moved for a similar judgment as to the second cause of action.

The following entry appears in the record, with respect to these motions: “When these motions were made and ruled upon as appears above, the court intimated, or rather stated, to counsel in open court, that no issue as to specific performance would be submitted .to the jury, the court being of the opinion, as a matter of law, that in any view of the evidence the plaintiff is not entitled to a specific performance us sought for in his complaint. The court also stated that no issue would be submitted to the jury upon any question of damage arising out of • the failure, as alleged, upon the part of the defendant to carry out the contract alleged in the complaint.”

The court charged the jury as 'follows: “If you believe all the evidence in this case, plaintiff is entitled.to recover $130, with interest thereon from 1910, and the further sum of $200 on the note bearing date of 11 January, 1913, with interest thereon.”

The jury returned the following verdict:

*6591. Is tbe defendant indebted to the plaintiff on account of any payment made by plaintiff to defendant on the $600 note mentioned in the third paragraph of the plaintiff’s complaint; and if so, in what amount? Answer: Yes; $130, with interest from 1 January, 1911.

2. Is the defendant indebted to the plaintiff on account of the $200 note referred to in the answer and the replication; and if so, in what amount? Answer: Yes; $200, with interest from date given.

Judgment was entered upon the verdict, and both parties appealed.

George McGorMe, W. A. Self, and JR. B. Moose for plaintiff,

A. A. Whitener for defendant.


WalKee, J.,

after stating the case: The rulings and judgment of the court were, in our opinion, clearly right. The plaintiff had no contract for the conveyance of the land to him which was binding in law upon the defendant. He had only a note of the defendant for the payment of $600, but no promise by the latter to convey the land to him. It was contended by plaintiff’s counsel that defendant wrote the note, and as his name, in his own handwriting, appears in it, this is a sufficient signing of the writing within the meaning of the statute of frauds to bind him to convey the land, and in support of this proposition he cited Hall v. Misenheimer, 137 N. C., 183. That case did not so decide. "We expressly held that the writing must contain a contract to convey the land, and when this appears, the place of signing is immaterial, if it evinces a purpose of the signer to adopt the contract as his. It was there said, it is true, that the memorandum or writing is not required by our statute to be subscribed, and therefore the place of the signature is not material. “In regard to the place of the signature,” says Mr. Browne, “there is no restriction. It may be at the top, or in the body, of the memorandum, as well as at the foot.” Browne on the Statute of Erauds (5 Ed.), sec. 357. But the *660name, be further says, besides being in the handwriting of the party to be charged, must always be inserted in such a manner as to authenticate the instrument as his act, or, in other words, to show the intention of the party to admit his liability upon the'contract. Browne, supra.

In Hall v. Misenheimer we discussed the question as to the proper place for the signature, because the point was raised, but it was only a preliminary to the statement of the vital question, that even if there was a sufficient signing, there was no contract to sign-

in Boger v. Lumber Co., ante, 551, Justice Allen, for the Court, says: “The authorities make a distinction between statutes requiring instruments to be signed and those requiring them to be subscribed, holding with practical unanimity, in reference to the first class, that it is not necessary for the name to appear on any particular part of the instrument, if written with the intent to become bound; and, as to the second class, that the name must be at the end of the instrument. In Richards v. Lumber Co., 158 N. C., 56, dealing with this question, the Court said: ‘It is well settled in this State that when a signature is essential to the validity of an instrument, it is not necessary that the signature appear at the end, unless the statute uses the word “subscribe.” Devereux v. McMahon, 108 N. C., 134. This has always been ruled in this State in regard to wills, as to which the signature may appear anywhere. If this is true of a “signature,” it must also be true of the word “countersign.” It has been often held that the place of signing is a matter of taste. Adams v. Field, 21 Vermont, 264; 36 Cyc., 441.’ ”

And so we held in Hall v. Misenheimer, supra. It was there held that the signature had its proper place in the paper, but the contents of the letter lacked promissory or contractual words to which the signature could attach itself, so as to form a valid agreement on his (vendee’s) part, under the statute, to pay the purchase money. We there said: “The name of the vendee was inserted in the paper by his own direction, and it cannot be questioned that he fully intended thereby to bind himself by the *661receipt as evidence of a contract to buy tbe land, so far as a signing of tbe writing was necessary for tbat purpose. Cherry v. Long, 61 N. C., 466, seems to be directly in point. It was not contended tbat tbe defendant was not bound by wbat bis agent did in writing tbe receipt, tbougb tbe latter’s authority was given by parol. Neaves v. Mining Co., 90 N. C., 412, 47 Am. Rep., 529. But we tbink there is a serious obstacle in tbe way of plaintiff’s recovery. Tbe statute expressly requires a contract to sell land, or some note or memorandum thereof, to be put in writing and signed by tbe party to be charged therewith or by bis lawfully authorized agent. Tbe Code, sec. 1554. In order, therefore, to charge a party upon such a contract, it must appear tbat there is a writing containing, expressly or by implication, all tbe material terms of tbe alleged agreement, which has been signed by tbe party to be charged, or by bis agent lawfully authorized thereto.”

A signature to a paper imposes no obligation unless there is in it language sufficient for tbat purpose, and where there is such language, tbe signature of tbe party binds him, tbougb it is not subscribed to'the instrument, but appears in some other part of it, if tbe intention is tbat it should be bis contract.

It must be remembered tbat tbe requirement of tbe statute is, not tbat tbe party shall sign a written memorandum merely, but tbat all contracts to sell or convey any lands, or any interest in or concerning them, shall be void, “unless said contract or some memorandum or note thereof be put in writing and .signed by tbe party to be charged therewith, or by some other person by him thereto lawfully authorized.” Revisal, sec. 976 (italics ours). It is, therefore, a contract to sell or convey the land tbat should be in tbe memorandum or writing to be signed. There is no such contract here. Tbe note of tbe defendant, although written by tbe plaintiff, contained only a promise on bis part to pay tbe money, but no reciprocal promise of tbe defendant to convey tbe land, tbat is, tbe dower tract. Tbe court was, therefore, right in holding tbat plaintiff was not entitled to specific performance of any contract to convey land, nor to damages for a breach thereof, and for tbe simple reason tbat there *662was no sucb contract. Tbe other exceptions of plaintiff become immaterial, and we understand tbat be bas no objection to tbe judgment, if be bas no cause of action upon tbe contract for specific performance or damages.

In tbis appeal, therefore, no error appears.

No error.


Walker, J.

The defendant’s exceptions, save one or two of them, have been decided favorably to him in tbe plaintiff’s appeal. He makes no objection to tbe judgment for tbe $130 and interest, but contends, and prayed the court to. so instruct tbe jury, tbat tbe note under seal for $200, given by him to tbe plaintiff in settlement of their differences, was without consideration. But a bond does not require a consideration, as tbe seal imports one. It was so held in Harrell v. Watson, 63 N. C., 454, where tbe same defense was pleaded to an action upon a sealed note. In tbat case it was said by Chief Justice Pearson: “He (defendant) says tbe bond is void for want of a consideration. Tbe reply is: A bond needs no consideration. Tbe solemn act of sealing and delivering is a deed, a thing done, which, by tbe rule of tbe common law, bas full force and effect .without any consideration. Nudum pactum applies only to simple contracts; deeds need no consideration, except sucb as take effect under tbe doctrine of uses, or sucb as are made void by tbe statutes of Elizabeth as against creditors and purchasers for valuable consideration, but are valid, as at common law, between tbe parties.”

Besides, it appears tbat tbe parties in good faith came to a settlement of their dispute as to their -rights. Plaintiff thought be bad a “bond for title,” but could not find it. Tbe death of tbe widow bad made tbe “dower tract,” as it was called, more valuable, and defendant wished to settle tbe matter, and made tbe first offer to do so. Tbe settlenient was a distinct advantage to defendant, as it removed an apparent cloud from bis title.

In Mayo v. Gardner, 49 N. C., 359, this Court said, by Chief Justice Nash: “In re Lucy, 21 Eng. Law and Eq., 199, it was *663decided that, to sustain a compromise, it was sufficient if tbe parties thought, at the time of entering into it, that there was a bona, fide (or real) question between them, though in fact there was no such question.” The law favors the settlement of disputes, as was said in that case. It is stated in 9 Oye., 345, that “the compromise of a disputed claim may uphold a promise, although the demand was unfounded,” citing numerous cases in the notes to sustain the text.

The settlement between the parties was also a bar to plaintiff’s recovery in this action, of which the defendant has had the benefit. He avers in his answer that it was fair and free from any fraud or mistake, and made voluntarily by the parties and for their mutual benefit, and it should be binding and conclusive as to both of them. It, therefore, formed a good consideration for the note, if it required one, being under seal. Clark on Contracts (2 Ed.), 132.

No error.