Todd v. . MacKie , 160 N.C. 352 ( 1912 )

This action was brought to recover damages for breach of a contract to sell land. A cause of action for specific performance was alleged, but afterwards abandoned. The jury returned the following verdict:

1. Did the defendant contract in writing to convey to the plaintiff the lands described in the complaint, as alleged in the complaint? Answer: No.

2. Was the plaintiff ready, willing, and able to comply with his part of the contract?

3. Did the defendant, in violation of his contract with the (354) plaintiff, convey the said lands to D. E. Dobbins, and thereby render it impossible for him to comply with his contract?

4. What damage has plaintiff sustained?

5. Was the contract between plaintiff and defendant that the plaintiff was to have the lands if the defendant got the same by judgment or compromise of the pending suit between J. H. Mackie and D. E. Dobbins and wife? Answer: Yes.

6. Was this condition or proviso left out of the paper-writing sued on by the ignorance or mistake or inadvertence of the draftsman? Answer: Yes.

7. Did the plaintiff tender the purchase money to the defendant within three months from 1 May, 1909?

Plaintiff alleged that the defendant had not really compromised the suit with Dobbins, but had sold the land to him for $4,500, without plaintiff's consent, and that there was no compromise in good faith. He therefore requested the court to charge the jury that "If the defendant sold the land to Dobbins for the sum of $4,500 before the term of the court at which the case stood for trial, without the knowledge or consent of the plaintiff, then he would be liable to plaintiff for the difference between the price agreed upon and the price received." This instruction was refused, and plaintiff excepted. At the close of the charge, the judge asked counsel for the parties if any other instruction was desired, when the plaintiffs requested him to charge the jury, "that in passing upon the issues, they should take into consideration the motive of the defendant, whether he acted in good faith in making the compromise, which he claimed the right to make, or whether he meant to violate his contract in order to get an increased price." This instruction was given. No other instruction was requested.

Plaintiff excepted to the rulings of the court as follows:

1. The court charged that if the jury finds that the contract is as alleged by the defendant in his answer, then they are to answer the first issue "No."

2. The court charged the jury that if they answered the first issue "No," and the fifth and sixth issues "Yes," then they need not answer the other issues.

3. The court charged the jury that if the defendant sold the lands to Dobbins bona fide to settle a long existing lawsuit, he would (355) not be liable for damages.

4. The failure of the court to charge the jury that if the defendant sold the lands to Dobbins for the sum of $4,500 before the term of the court at which the case stood for trial, without the knowledge and consent of the plaintiff, then he would be liable to the plaintiff for the difference between the price agreed upon and the price received.

5. The court refused to have the jury answer the second, third, and fourth issues submitted.

6. The court failed to render judgment for the plaintiff, notwithstanding the verdict, from the record and facts admitted.

7. The court rendered judgment in favor of the defendant.

Plaintiff excepted and appealed from the judgment upon the verdict. After stating the case: The charge of the court is not in the record, and therefore we cannot judicially see that instructions were given as stated in the first three exceptions. If the contract was correctly set forth in the answer, the jury could not answer the first issue in the affirmative, the contract as stated in the first issue being an unconditional one. The jury, by the answer to the fifth issue, have found what were the terms of the contract, viz., that defendant agreed to convey the land to plaintiff, subject, however, to the result of the pending suit between him and Dobbins. If the land came to him by the judgment or in the settlement, it was to be conveyed to plaintiff, but not so if it went to Dobbins. The court charged the jury that the compromise must have been conducted in good faith. The jury have, therefore, virtually found that defendant did not get the land in the compromise, though the right was reserved to him in the contract with plaintiff, as the jury find, to settle with Dobbins, which he did in good faith.

The answers of the jury to the first, fifth, and sixth issues made it unnecessary to answer the second and third issues. The negative answer given to the first issue, without regard to the answers to the fifth and sixth, had the same effect. The second and third issues (356) referred to the contract mentioned in the first, and if there was no such contract, there could, of course, be no performance or violation of it, and consequently no damages for its breach. Purnell v. Purnell,89 N.C. 42; R. R. v. Purifoy, 95 N.C. 302. Under the terms of the contract, as stated in the answer and as settled by the verdict of the jury, defendant had the right to sell to Dobbins or to surrender the land in settlement of the suit between them of long standing. Plaintiff having contracted to buy the land subject to this clear right, as expressed in the agreement between defendant and Dobbins, cannot complain if it was exercised in good faith, which the jury decided to be the fact.

The plaintiff's first or written prayer for instruction, if proper in itself, was substantially given in the court's response to the second, or oral, prayer. It does not follow, because the defendant sold the land without the knowledge or consent of plaintiff before the term of the court at which the case was docketed for trial, for the sum of $4,500, that defendant is liable for the difference between that amount and the price received. There was no stipulation in the contract between plaintiff and defendant, as found by the jury, that the land should not be sold without plaintiff's knowledge and consent. We suppose that plaintiff intended by this prayer to challenge the good faith of the transaction between defendant and Dobbins, and to insist before the jury that it was a mere subterfuge concocted to avoid compliance by the defendant with his promise to sell the land to plaintiff. If so, this contention was open to him under the instruction as to good faith, which was given by the court at the request of the plaintiff. If plaintiff desired a more specific issue or instruction, presenting the question whether the compromise was a sham or pretense intended for the purpose of evading the obligation of his contract, he should have asked for it. Simmons v.Davenport, 140 N.C. 407 (Anno. Ed.), and cases cited. The court properly entered judgment for the defendant upon the verdict. There is nothing which entitled the plaintiff to a judgment, in view of the findings of the jury. The motion for judgment non obstante (357) veredicto could not have been granted. There was no matter set up in avoidance. Referring to a similar motion, the Court said in Moye v. Petway, 76 N.C. ; 327; "The motion for judgment in favor of the plaintiff non obstante veredicto has nothing to rest on; that practice is very restricted and is confined to cases where a plea confessed cause of action and the matter relied upon in avoidance is insufficient in such cases the plaintiff may sign judgment as on nil dict treating the plea as `a sham one,'and, even of he traverses the matter relied on in avoidance, although the issue be found against him, he is still allowed to take judgment notwithstanding the verdict. This practice was adopted to discourage `sham pleas.' Here there is no `sham plea' in the case."Ward v. Phillips, 89 N.C. 215; Walker v. Scott, 106 N.C. 56; Riddlev. Germmanton, 117 N.C. 387.

It appearing in the case that defendant did not get the land in his negotiation for a settlement of his dispute with Dobbins, and the jury having found, under instructions of the court given at plaintiff's request, that he acted in good faith, there is left nothing for the plaintiff's claim to rest upon.

We have adverted to the exceptions of plaintiff, found in the record, but they are really not before us, as they are not based upon any matter contained in the case or record proper. Assignments of error must be based upon exceptions duly taken, and the exceptions must have as their basis some ruling of the court appearing affirmatively in the record, and not depending for its existence upon statements made in the exception or assignment. In analogy to demurrers of the same nature are the would-be "speaking" exceptions. Worley v. Logging Co., 157 N.C. 490 Allred v.Kirkman, post, 392. So with the assignments of error as to the instructions, we cannot consider, unless the charge is sent up with the record. This Court does not presume error, but it presumes against it, and error must be shown by the complaining party or appellant.

No error.