Clancy v. Craine, 17 N.C. 363, 2 Dev. Eq. 363 (1833)

Dec. 1833 · Supreme Court of North Carolina

17 N.C. 363, 2 Dev. Eq. 363

Thomas Clancy, et al. v. Thomas D. Craine.

A plea of the act of 1819, (liev. ch. 1016) avoiding parol contracta forthS sale of land, is bad, where the plaintiff does not pray a specific performance, hut treats the contract as a nullity, and s'eéks other relief.

A demurrer is bad, which- does not specify the parts of the bill to which it is intended to apply. More especially is it bad, when it is expressed to be “ to the residue of the bill not pleaded to,” when ih fact the plea ap--plies to the whole bill.

This ivas a bill filed in the Court of Equity for Onl-ange county, by Thomas Clancy, James Child and John W. Norwood, the material allegations of which were that Thomas Clancy and James Child, being connected together, as co-partners in trade,_ under the firm and style of Thomas Clanty & Company, agreed with Thomas D. Craine-, the defendant, who at that time, was the owner of certain grist add saw mills and a distillery, with land and fixtures annexed,to become his partners in the business of milling and distilling. That in order to carry the agreement into effect, it was stipulated that Clancy and Child should own each one third part of the lands, mills, &c. for which they were to pay a certain price, and then the business Was to bo conducted at their joint expense,and for their joint benefit. That the contract was reduced to writing, but never signed by either of tiie parties. Thai in pursuance of tire agreemen t, large sums of money were paid to tire defendant by Clancy and Child, as well for the interest which they had purchased,as Pm- the repairs, improvements, &c. and that largo profits were realized from the business, which came to the hands of the defendant alone, who had the personal management of tiro affairs of the concern. That in 1830, the firm of Thomas Clancy -& Co. failed, and -an assignment of their ef-WRS ma(]e (|ie plaintiff JVbrwood, for tlie benefit Gf their creditors — and that in consequence of their failure, tí Key became unable to fulfil their contract with the defendant. The bill then prayed that an account might be taken of the partnership dealings and transactions, and the defendant compelled to refund to the plaintiffs what they had paid out and advanced in the said business, and to pay over to them a just proportion of the profits.

To this bill, the defendant pleaded the act of 181% fJlcv. ch. 1016,) avoiding parol contracts for the sale of lands; and as to the residue of the bill, demurred for Want of equity.

His Honor Judge Daniei, on the Fall circuit of 1833, overruled the plea and demurrer, whereupon the defendant appealed.

Badger and W. A. Graham, for the plaintiffs.

Winston and Waddell, for the defendant.

Ctaston, Judge:

The argument of this case has brought .before us the merits of the bill, and has been conducted as though a general demurrer thereto had been put in by the defendant. That the parties may not be wholly disappointed as to the objects of this appeal, we shall express onr opinion upon matter» involved in the discussion* although a decision of them is not necessary for the judgment which we shall render. We think that the bill iri its present form does not make out a case which entitles the plaintiff to relief. The agreement which- it states to have been in fact made,but to which it «feaiies legal validity, because not signed by the parties, eoHsistS' indeed of many parts* but is yet esséntially one.

It is an agreement of copartnership, in which provision is made for' the constitution of its capital stock,by a stipulation t-kat -the defendant will bring into the stock bis mills and mill tract, and that the plaintiffs shall pay toim an agreed sum for this advance on his part. The contract involves an agreemeut for the sale of lands, comes within the purview of the act of 1819, ami may he avoided, tmless signed as the act directs. But an avoidance does not affect that part only (if the contract which is confined to the sale of the land, hut affects the entire contract. Neither of the parties, on discovering this part to be inconvenient, can require to have the re- . . ‘ _ , * _ * * j.% suluc or the agreement executed, unless one ot the par-tics objects, because of the statute, the contract stands . , . . . . entire. If either objects, it is avoided m tota.

a contract which involves™ agreement for tn& fiaie 0f i* w.ltlim the purview of the act of 1819, and maybe. the act directs,

e0nt^ctWcompr¡¿ <*»somethingei«e, part avo¡(js ^ whole,

a vendee who. “a°'t^ct af0rP*thc sale of land, can-n8t f®11 “Pon h!ft pensation.

The plaintiffs, according to the frame of this bill, have elected to avoid the parol agreement, and have, as we have seen, no right to ask for its execution in part. But they ask for compensation, because of their advances aaade,and losses incurred upon, the confidence that such agreement would be faithfully executed. But if, by their own act, the execution of it lias been prevented — if they have voluntarily abandoned the agreement— where is their injury, and what their title to redress? In conscience, they should have proceeded to fulfil the agreement on their part as though it had been signed, so long as the defendant.admitted its efficacy. The law feas pat it into their power to deny it efficacy at their option ; but it will not make the defendant pay them for -taking this, advantage.

Wherever a demand is preferred in any court for remuneration, because of the avoidance of a contract under the statute of frauds, the court will not be brought into activity except at the instance of him who offers to execute the agreement, or who lias been willing and ready to execute it.

But in the exercise of our limited jurisdiction upon this appeal from an interlocutory order, we apprehend that we can only revise the decision below declaring the demarre*' and plea bad. The demurrer is bad because, it does not specify the particular parts of the bill demurred unto. (Mitfds. Pl. 173. Chitwynd v. Lindon, 2 Ves. Sen. 450, Robinson v. Thompson, 2 Ves. & Bea. 118. Weatherhead v. Blackburn, do. 121.) The demurrl er is to those parts of the hill which are not covered by the pica. This alone furnishes a sufficient reason fur overruling it, but it is the more vicious in this case, be-cauge £|)e pjea extends to all the accounts arising out of the sale and joint ownership stated in the bill, every account asked may be considered as arising thereout, and the court cannot distinctly see what part of the bill is left uncovered by the plea, and to which the defendant demurs. The plea is entirely inapplicable, for the claim of the plaintiffs (such as it is) is actually founded upon the invalidity of the unsigned agreement.

We shall therefore cause our opinion to be certified to the court below,that it has not erred in overruling the demurrer and plea of the defendant; and that said court shall proceed further with said cause as it may be hereafter moved by the parties, and its discretion may direct,

Per Curiam — Decree aeejrmep.