Sizemore v. Morrow, 28 N.C. 54, 6 Ired. 54 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 54, 6 Ired. 54

THOMAS SIZEMORE vs. SAMUEL C. MORROW.

The construction of a written document is purely a matter of law, in all cases, where the meaning and intention of the parties are to be collected from the instrument itself.

Where A. sold a tract of land to B. — made him a conveyance and took his bond for the purchase money, and afterwards B. re-convoyed <to A., who entered into bond that he would convey to B., whenever the purchase money should be paid ; and it was further stipulated that if the purchase money were not paid, B. should pay a certain rent — Held that this latter contract rescinded the first, and that the bond given under the first contract was discharged at law.

Appeal from the Superior Court of Law of Person County, at the Fall Term, 1845, his Honor Judge Dick presiding.

This is an action of assumpsit on the following case. Tiie plaintiff was the owner of a house and lot in the town of Koxborough, which he sold and conveyed to the defendant at a Stipulated price, to secure which the defendant gave him his bond for #350. This bond Size-more, for valuable consideration, transferred by endorsement to the Messrs. Webb. Afterwards, and while the above bond was the property of the Messrs. Webb, these parties entered into a new agreement. It had been a part of the original contract, that the defendant Morrow should give Sizemore a surety on his bond. This he failed to do, and becoming embarrassed in his circumstances, the plaintiff became uneasy lest his other creditors, who were pushing him for their claims, should levy upon and sell the house. He proposed to the defendant to give him a deed of trust upon the premises, which he refused. It was thereupon agreed, between them, upon the suggestion' of their legal adviser, that the defendant, Morrow, should re-cQnvey the premises to the plaintiff, and that the latter should give him a bond to make title when the purchase money was paid by the defendant. Morrow, accordingly, re-conveyed the premises to Size-more, who at the same time executed to him his bond for title, -which, contains the following stipulation: “ It is further understood between the parties, and is a part of this contract, that if said Morrow fails to pay the purchase money, he is to pay $35 a year rent, and if he pays the rent, he is to pay no interest on the bond. The rent to commence from the time said Morrow took possessionV The Messrs. Webb brought suit against these parties on. their bond, and recovered judgment thereon, on which execution issued, and the property of the defendant was sold and the sum of #200 raised. The plaintiff paid #175, and this action is brought to recover that sum, as paid to the use of the defendant.

On the part of the defendant, it was insisted, that, in law, the bond held by the Messrs. Webb, as between these parties, was discharged by the second agreement. The Judge charged the jury, that if, by the arrangement of the 15th of October, it was the intention of the parties, that it should be a satisfaction of said bond, then in law it was a satisfaction. It was a question of fact for them to determine, whether such was the “ intention of the patties.”

The jury found a verdict for the plaintiff, and the defendant appealed.

E. G. Reach, for the plaintiff.

Venable, for the defendant.

Nash, J.

We think in his instruction to the jury, Ms Honor erred. The construction ©f a written document is purely a matter of law, in all cases, when the meaning and intention of the parties are to be collected from the instrument itself. Thus the construction of records and deeds, and other express contracts, is m'atter of law for the Court, and not of fact for the jury. Macbeath v„ Holdiman, 1 Term R. 180, 1st Star. Ev. 463. If the intention of the parties in making a contract, is a matter of fact for the jury, then that intention, being out of the deed, could be proved by parol, and parol evidence would be receivable to alter the legal construction of the instrument. This cannot b'e. See, 2 Star. Ev. 553 ; Hoar v. Graham, 3 Camp. 57 ; Hogg v. Smith, 1 Taun. 347.

We might satisfy ourselves by stopping at this poin% and for this error send the cause back to another jury ; but as we are of opinion, that the plaintiff cannot recover, in this action, we will proceed to state our reasons. The first contract, made on the 3d of March, 1842, was an executed contract. Sizemore had made his conve3rance to Morrow, and the latter had executed his bond for the purchase money. The lot and houses were the property of Morrow, to every intent and purpose, free from any lien in favor of Sizemore. In October following, the parties enter into a new contract. Morrow conveys the same premises back to Sizemore, the latter giving him a bond to make title, when the purchase money shall be paid. If the bond had stopped here, it might well be questioned whether the first contract in all its. parts was rescinded, and whether the transaction was not merely in the nature of a mortgage. But it goes on, and by the latter clause, alters the character of the original contract entirely. For if Morrow does not pay the purchase money, it is made a part of the contract, that he shall pay rent for the premises from the time he took possession. This puts it in the power of either to repudiate the contract of purchase at law, and makes Morrow the tenant of Sizemore. This latter contract is so essentially different from the first, that the two cannot, in any of their parts, stand togeth&r, and the bond of the 2d of March, being a part of the first contract, must be considered, as between these parties, discharged at law. What may be the equities of the§e parties, we cannot, sitting in a Court of law, decide.

Per Curiam. Judgment reversed, and a venire de novo ordered.