Lewis v. Brinkley, 50 N.C. 295, 5 Jones 295 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 295, 5 Jones 295

HILLIARD LEWIS v. JACKSON W. BRINKLEY.

The defendant had agreed to deliver a deed to the plaintiff before two o’clock, and failing to do so, the plaintiff offered to receive the same after that time during- the day; but while the deed was being prepared he left, declaring he had waited long enough, and refused to receive the deed next day when tendered, it teas held that the plaintiff was entitled to recover from the defendant a sum advanced as part of the price.

ActioN of assumpsit, tried before Caldwell, J., at the last Spring Term of Wilson Superior Court.

The defendant agreed to meet the plaintiff next day and execute to him a deed for a lot in the town of Wilson, between the hours of 10 A. M. and 2 P. M. The plaintiff paid defendant fifty dollars, in part of the purchase money, and it was further agreed, that if eitheV party failed to perform the contract, he should forfeit to the other, fifty dollars.

The parties met, as had been stipulated between them, but the deed was not delivered before two o’clock, although the plaintiff twice suggested to the defendant that this had better be done. After two o’clock, the plaintiff still expressing a willingness to take the deed, they went together to an attorney to have one prepared. Before the deed was prepared, being almost dark, the plaintiff left the place, declaring that he had waited long enough, and would not wait any longer, and that he must have his deed or his money. In reply, the defendant requested the plaintiff to wait a few minutes and he. should have the deed. On the next day, the defendant tendered the plaintiff a deed prepared by the attorney, but the plaintiff refused to accept it, and this action was brought to recover the fifty dollars advanced as part of the price. Upon these facts, the Court charged that the plaintiff was entitled to recover. Defendant excepted.

Yerdict for plaintiff. Judgment and appeal.

Dortch, for the plaintiff.

Strong, for the defendant.

Pearson, J.

Ue concur with bis Honor in the viéw taken by him -of this «ase. As the deed was not 'delivered before two o’clock, the defendant was in default, and plaintiff had a good cause of action at that time. It was therefore gratuitous, .and a matter of favor oh his part, to agree to go to an attorney, so that the deed might be prepared and accepted nunc pro tunc. It comes with an ill grace from the defendant to insist, that after dallying about the matter and detaining the plaintiff ’till almost dark, he had a right to deliver the deed on the next 'day, although the plaintiff had, the day before, twice “ quickened his diligence” within the appointed time, by suggesting that the deed had better be executed, and h-ad finally, after his patience was exhausted, started home, notifying the defendant that he would not accept the deed afterwards, but should .insist on having the money. • The plaintiff certainly had a right to put an end to the continuance of the favor that he had granted. The defendant had no right to trifle with him any longer, and was bound to hand him back his money, (the fifty dollars paid). "Whether he was not also bound to pay the fifty dollars forfeit, is a question not presented by the ease.

Pjsb CuRiAM, Judgment affirmed.