Leroy v. . Jacobosky , 136 N.C. 443 ( 1904 )

We concur with Judge Councill in his conclusions both of law and fact upon the motion to dismiss. There were no antagonistic relations on the part of counsel. We also concur in the conclusion that the money proceeds of the sale of the land in the hands of the Clerk was subject to attachment. The sale had been confirmed and the cash payment made to the commissioner, who had paid it to the Clerk. He held it subject to the immediate demand of the defendant. The question is expressly so decided inGaither v. Ballew, 49 N.C. 488, 69 Am. Dec., 763, and the authorities reviewed overruling Alston v. Clay, 3 N.C. 220, and Overton v. Hill,5 N.C. 47; Williamson v. Nealy, 119 N.C. 341. We see no valid objection to the probate of the contract. There being no witness to the instrument, and the parties except LeRoy being non-residents, it was proved as prescribed by section 1246 (9) of The Code. All the parties being alive, we can seen no good reason why this proof may not be made by LeRoy, a party to the instrument. Clark v. Hodge,116 N.C. 761. We do not find any merit in either of the exceptions in regard to the admission of the contract. His Honor correctly held that the measure of the plaintiff's damage was the difference between the contract price and the value of the land. Nichols v. Freeman, 33 N.C. 99; Sedgwick on Damages, sec. 1006; 2 Warville on Vendors, p. 959; Joyce on Damages, sec. 1758. The defendants having sold the land at public auction and received the proceeds are liable for the difference between the contract price and the amount received by them. That the contract is enforcible and, therefore, that an action for damages for breach thereof (459) may be maintained, is well established. Rodman v. Robinson, 134 N.C. 503. There is no error in the judgment against Jacobosky Bros.

Affirmed.

APPEAL OF DEFENDANT S. H. WEISEL.