Opinion · Supreme Court of North Carolina
Simms v. . Killian
34 N.C. 252
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1851-08-05
- Topic
- general
Ruffin, C. J. The Court concurs in the opinion of his Honor, which is in accordance with the case of Rice v. Carter, decided here a year ago. The contract concerns the sale of an interest in land, and by the statute of frauds a party to it cannot be charged therewith, unless it be in writing and signed by the party thus sought to be charged.
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SIMMSv. KILLIAN,34 N.C. 252(1851)
JACOB SIMMS v. JOHN KILLIAN.
Supreme Court of North Carolina
(August Term, 1851.)
Assumpsit, in which the plaintiff sought to recover the sum of $200, part of the price which the intestate promised to pay the plaintiff for his interest in a tract of land. On the general issue the facts were these: The plaintiff contracted with one Wikle for the purchase of the land at $600, and paid him $210 and took his obligation to convey to him the payment of the residue of the purchase money. Afterwards Jones, the defendant's intestate, contracted orally with the plaintiff for the purchase of his interest in the land at $800, whereof he promised the plaintiff to pay $590 to Wikle in full of the balance due him, (253) and to pay the plaintiff the remaining $210. Thereupon the plaintiff signed a written memorandum on Wikle's obligation that Jones was authorized to take a deed from Wikle in his own name, and delivered the paper to Jones, who afterwards paid the purchase money to Wikle and got a deed from him, and also paid the plaintiff the sum of $10 in part of the $210, but died without making any further payment. The defendant insisted that the action would not lie because the agreement was not in writing, and the presiding judge was of that opinion and nonsuited the plaintiff, and he appealed.
PER CURIAM. Affirmed.Cited: Wade v. New Bern,77 N.C. 462;Holmes v. Holmes,86 N.C. 208;Little v. McCarter,89 N.C. 236;Love v. Atkinson,131 N.C. 546;Hallv. Misenheimer,137 N.C. 186-188;Brown v. Hobbs,154 N.C. 549.
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