Opinion · Supreme Court of North Carolina

Winton v. . Fort

58 N.C. 251

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1859-12-05
Topic: general

PeaesoN, C. J. As the contract was not reduced to writing, the plaintiff is not entitled to a specific performance, but as the repairs and improvements were made with the knowledge and concurrence of the defendant, he cannot, in conscience, take the benefit, and refuse to make a proper allowance for the expenditure, unless the plaintiff has violated and .refused to abide by and perform some essential part of the contract, and thereby put himself so far in default, as justly to have incurred a forfeiture of his outlaty. To meet this equity,- the defendant alleges that he agreed to sell the piece of land at six dollars per acre, “provided, and upon the condition” that the plaintiff would, for a term of years, keep a good school at the academy, and that the plaintiff refused to teach after the first year. *253 Upon a careful examination of the evidence, and! a full consideration of all the circumstances connected with- the transaction, we are satisfied there was no such stipulation in the sense of a condition, either subsequent or precedent, so as to form a part of the essence of the contract. "Wo have no doubt that the defendant expected the plaintiff Avould continue to teach the school, and that was one of the-inducements for selling to him, and we hav® as little doubt that the plaintiff expected to continue to'teaeh, and that was one of his inducements for buying, but suck matters of inducement are not allowed to have the effect of defeating an estate, or of preventing it fro…

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Cited by: 2 opinions

WINTONv. FORT,58 N.C. 251(1859)

HENRY L. WINTON v. WILLIAM L. FORT.

Supreme Court of North Carolina

(December Term, 1859.)

1. Matters of inducement to a contract not expressed as a condition and not forming a part of the essence of the contract are not allowed to defeat an estate or prevent it from vesting.

2. Where B., by parol contract, agreed to sell to A. a tract of land, and gave him possession and permitted him to make repairs and improvements, and afterwards, on B.'s repudiating the bargain and pleading the statute of frauds to a suit for a specific performance, it was Held in that suit that he should account to A. for the outlay in repairs and improvements.Page 204

CAUSE removed from the Court of Equity of Wake.

This was a bill to compel the specific performance of a parol contract to convey the plaintiff 22 acres of land at $6 an acre. The plaintiff alleges that, expecting to keep a school on the land in question, he made the contract stated and, with the aid of the defendant, moved upon the premises and put large improvements on the same in building, repairs to building, clearing and fencing, and that the whole amount of these repairs was worth $800. The plaintiff alleges that he kept a school in the academy spoken of, and that four of the defendant's children came to his school; that the price of their tuition amounted to $120, and that it was understood and agreed between them that this tuition money was to go towards paying the price of the land; that when the contract was first made a surveyor was procured, who ran off the 22 acres agreed to be sold, and notes taken by him of this survey were left with the parties that a deed might be drawn between them, and that each paid half the expense of surveying.

The bill alleges that the defendant now refuses to perfect the contract so set out, and refuses to account to him for the improvements put on the land. The prayer is for a specific performance; and if the defendant relies upon the statute of frauds as a bar to this equity, he prays that the defendant may account to him for the expenditures and outlays in improving the premises, and for general relief.

The answer of the defendant admits that there was a parol contract between him and the plaintiff in respect to this land, but he says (252) it was totally different in its terms and meaning from that set forth in the plaintiff's bill; that the real contract was that the "defendant agreed to sell him the piece of land at $6 an acre, provided, and upon condition, that he, the said Henry L. Winton and his wife, would, for a term of years, keep a good male and female school at the academy on my land"; that the said plaintiff had entirely failed to do so; that he had not paid him anything for the price of the land; that it is true he did send four children to school to the plaintiff for two sessions, but that the charge he was entitled to make therefor was less than $120, and that he had an account against the plaintiff for more than that sum for the hires of three slaves, and that the $20 alleged to have been paid towards the purchase money of the land was in fact paid towards these hires.

The defendant relied upon the statute of frauds, making void parol contracts for land. The proofs are sufficiently adverted to in the opinion of the Court.

Miller and Fowle for plaintiff.G. W. Haywood for defendant.Page 205

PEARSON, C. J.

As the contract was not reduced to writing, the plaintiff is not entitled to a specific performance; but as the repairs and improvements were made with the knowledge and concurrence of the defendant, he cannot in conscience take the benefit and refuse to make a proper allowance for the expenditure, unless the plaintiff has violated and refused to abide by and perform some essential part of the contract, and thereby put himself so far in default as justly to have incurred a forfeiture of his outlay.

To meet this equity, the defendant alleges that he agreed to sell the piece of land at $6 per acre,"provided, and upon condition,"that the plaintiff would,for a term of years, keep a good school at the academy, and that the plaintiff refused to teach after the first year.

Upon a careful examination of the evidence and a full (253) consideration of all the circumstances connected with the transaction, we are satisfied there was no such stipulation in the sense of a condition, either subsequent or precedent, so as to form a part of the essence of the contract.

We have no doubt that the defendant expected the plaintiff would continue to teach the school, and that was one of the inducements for selling to him, and we have as little doubt that the plaintiff expected to continue to teach, and that was one of his inducements for buying, but such matters of inducement are not allowed to have the effect of defeating an estate or of preventing it from vesting, and if such be the intention of the parties, if it should be expressed in the shape of a condition, either in the conveyance by which to defeat the estate or as a positive stipulation in default of which the contract to sell, is to be void and of no effect.

The estate was to be in fee simple, and the idea that, after taking effect, it was to be defeated by force of a condition subsequent is nowhere suggested. We think the suggestion that "teaching the school for a term of years" was a condition precedent, so that the defendant was not to execute a deed for the land, although the purchase money was fully paid, unless the school was taught for a term of years, finds as little to rest on, either in the evidence or in the nature of the subject-matter. There is no proof that the defendant agreed to take a cent less for the land in consequence of the understanding about the school. Soon after the contract a surveyor is procured, and the land is run off, and the notes of the surveyor retained by the parties for the purpose of having a deed drawn, and not a word is there said giving the slightest room for an inference that the deed was not to be executed upon the payment of the purchase money, but was to be held up until the school had been taught for aterm of years. Surely had such a condition been agreed on it would have been put into a more certain and definite shape. How longPage 206was the term of years to be? Upon what terms was the plaintiff to continue to teach? Such as the defendant might choose to dictate? (254) Or such as he was receiving for his first or trial year? Or such as the trustees of the academy might afterwards see proper to offer? In so grave a matter as aconditionwe ordinarily find all these things fixed as far as the parties can do so; and if other persons are concerned (like the trustees in this case), they are usually consulted. In short, the matter has not a single feature of a condition, but resembles in every respect a mutual expectation operating upon and treated by the parties as a mere inducement, which afterwards fails because the plaintiff is not able to come to a satisfactory arrangement as to his salary or the value of his services with the trustees, of whom the defendant is one, and thereupon they employ another person to take charge of the academy.

PER CURIAM. Decree for an account.Cited: Barnes v. Brown,71 N.C. 512;McCracken v. McCracken,88 N.C. 285.