Dixson v. C. E. Johnson Realty Co., 209 N.C. 354 (1936)

Jan. 22, 1936 · Supreme Court of North Carolina

209 N.C. 354

T. B. DIXSON v. C. E. JOHNSON REALTY COMPANY.

(Filed 22 January, 1936.)

1. Appeal and Error L a: L d—

The decision of the Supreme Court on a former appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.

2. Frauds, Statute oí, E a — Party obtaining forbearance during life of written contract by extending its terms by oral agreement may not plead statute of frauds to defeat action on oral agreement.

Defendant executed a written contract to repurchase a certain lot from defendant at any time within a year from the sale if plaintiff was not satisfied with the lot. Thereafter the agreement to repurchase was extended for one year by a writing attached to the contract and signed by defendant’s authorized agent. During the life of the written contract, plaintiff made demand on defendant for the execution of the agreement, and defendant, or its agent, obtained forbearance on the part of plaintiff by agreeing orally to extend the contract for another year. Held: Upon institution of suit by plaintiff on the contract during the period of the parol extension, defendant is precluded from defeating plaintiff’s recovery by pleading the statute of frauds.

Appeal by defendant from Hill, Special Judge, at April Term, 1935, of Forsyth.

No error.

This was an action to recover on the following contract:

“ ‘We Sell the Earth’

C. E. Johnson Eealty Company

Eeal Estate and Fire Insurance

Eeputation Our Capital : : Eeliability and Promptness

Winston-Salem, N. C.

November 6, 1928.

“0. E. Johnson Eealty Company hereby agrees to refund to T. B. Dixson the full purchase price of $4,837.80 for Lot No. 14 in ‘Stratford Place,’ with 6% interest, on November 6, 1929, in the event the above named purchaser should not be entirely satisfied with purchase of said lot.

Tours very truly,

“Attest: C. E. Johnson Eealty Co.,

“(Signed) E. C. Johnson, By (Signed) O. E. Johnson,

Sec. Pres.”

“We hereby agree to renew the above contract and extend the terms and guarantee for another twelve months to November 6, 1930.

C. E. Johnson Eealty Co.,

“(Signed) By (Signed) E. C. Johnson, Treasurer.

“M. A. Biggs, Witness.”

The prayer of plaintiff in his complaint was for “such other and further relief in the premises as to the court shall seem proper.”

The evidence discloses that demand was made by plaintiff on defendant, or its duly authorized agent, within the time limit for the performance of its written contracts, and defendant failed and neglected to perform and appealed to plaintiff to give another year in which to perform its contract, promising to put same in writing. This extension of time and forbearance was given by plaintiff with the assurances made by defendant and relied on by plaintiff, which later the extension of performance was denied and repudiated by defendant. The plaintiff was at all times ready, able, and willing to perform his part of the contract. The present action was instituted on 5 November, 1931, within the extension time for performance.

The issues submitted to the jury and their answers thereto were as follows:

“1. Did the plaintiff and the defendant, on 6 November, 1928, enter into a written contract by the terms of which the defendant agreed to refund to the plaintiff the full purchase price of $4,837.80 for Lot No. 14 in Stratford Place, with 6 per cent interest, in the event the plaintiff should not be entirely satisfied with the purchase of said lot on 6 November, 1929, as alleged? Answer: "‘Yes.’

“2. If so, did the plaintiff and defendant thereafter contract and agree in writing to extend the terms of said alleged agreement and continue same until 6 November, 1930, as alleged? Answer: ‘Yes.’

“3. Did the plaintiff elect and offer to sell, and was he ready, able, and willing to convey said parcel of land to the defendant, within the time specified in said alleged agreements? Answer: ‘Yes.’

“4. Did the plaintiff and the defendant, before 6 November, 1930, orally contract and agree to extend the provisions of said alleged agreements for a further period of twelve months, and until 6 November, 1931? Answer: ‘Yes.’

“5. If so, did the plaintiff, within the time specified in said alleged oral agreement, elect and offer, and was he ready, able, and willing to convey to the defendant the said parcel of land? Answer: ‘Yes.’

“6. Did the defendant, within the time specified in said alleged oral agreement, decline and refuse to accept a conveyance of said property and pay therefor the-sum of $4,837.80, with interest, as alleged? Answer : ‘Yes.’ ”

The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court.

Ingle & Bucher for plaintiff.

Parrish & Deal and Galvin Graves, Jr., for defendant.

Per Curiam.

This action has heretofore been before this Court. 204 N. 0., 521. At the close of plaintiff’s evidence and at the close of all the evidence (C. S., 567) the defendant made motions in the court below for judgment as in case of nonsuit. The court below refused these motions, and in tbis we can see no error. We think tbe plaintiff’s evidence on tbe trial in tbe court below substantially tbe same as was set forth in tbe former appeal.

A decision by tbe Supreme Court on a prior appeal constitutes tbe law of tbe case, both in subsequent proceedings in tbe trial court and on a subsequent appeal.

In tbe previous opinion we quoted from Alston v. Connell, 140 N. C., 485 (491-2), and we quote in part again as follows: “Tbe extension having been given at Thomas Connell’s request and for bis convenience, when tbe extended agreement itself and all tbe circumstances clearly implied that be regarded it as a valid and binding contract, and that be intended to live up to its terms, tbe law will not permit him now to repudiate its obligations, invoke for bis protection tbe statute of frauds and defeat tbe plaintiff’s recovery, who bad forborne a timely performance by reason of Thomas Connell’s request and in reasonable reliance on bis assurance. Tbis position is in accord with sound principles of justice and is well sustained by authority.”

It is too technical to contend that tbe pleadings with tbe issues and charge of tbe court below are insufficient to support tbe judgment and are contradictory. We do not think there is such a variance between tbe allegations, proof, and issues that could be held as prejudicial or reversible error. Tbe issues were largely in tbe discretion of tbe court.

We think there was plenary evidence, direct and circumstantial, of tbe authority of Biggs, who made tbe extension of forbearance, and tbis with tbe knowledge and acquiescence of defendant. Tbe underlying principle of law involved in tbis case is embodied in tbe broad idea of justice that where one forbears from performing an act at tbe request of and for tbe benefit of another, tbe latter will be precluded from later taking tbe position that tbe former bas lost tbe protection of bis rights by such forbearance. Defendant’s business covered some territory — “We sell tbe Earth.”

In tbe judgment of tbe court below, we find

No error.