Sizemore v. . Morrow , 28 N.C. 54 ( 1845 )

Assumpsit on the following case: The plaintiff was the owner of a house and lot in the town of Roxboro, which he sold and conveyed to the defendant at a stipulated price, to secure which the defendant gave him his bond for $350. This bond Sizemore, for valuable consideration, transferred by indorsement to the Messrs. Webb. Afterwards, and while the above bond was the property of the Messrs. Webb, these parties entered into a new agreement. It had been a part of the original contract that the defendant Morrow should give Sizemore a surety on his bond. This he failed to do, and becoming embarrassed in his circumstances, the plaintiff became uneasy lest his other creditors, who were pushing him for their claims, should levy upon and sell the house. He proposed to the defendant to give him a deed of trust upon the premises, which he refused. It was thereupon agreed between them, upon the suggestion of their legal adviser, that the defendant Morrow should reconvey the premises to the plaintiff, and that the latter should give him a bond to make title when the purchase money was paid by the defendant. Morrow, accordingly, reconveyed the premises to Sizemore, who at the same time executed to him his bond for title, which contains the following stipulation: "It is further understood between the parties, and is a part of this contract, that if the said (55) Morrow fails to pay the purchase money, he is to pay $35 a year rent, and if he pays the rent, he is to pay no interest on the bond. The rent to commence from the time said Morrow took possession." The Messrs. Webb brought suit against these parties on their bond, and recovered judgment thereon, on which execution issued, and the property of the defendant was sold and the sum of $200 raised. The plaintiff paid $175, and this action is brought to recover that sum, as paid to the use of the defendant.

On the part of the defendant it was insisted that, in law, the bond held by the Messrs. Webb, as between these parties, was discharged by the second agreement. The judge charged the jury that if by the arrangement of the 15th of October it was the intention of the parties that it should be a satisfaction of said bond, then in law it was a satisfaction. It was a question of fact for them to determine, whether such was the "intention of the parties."

The jury found a verdict for the plaintiff, and the defendant appealed. We think in his instruction to the jury his Honor erred. The construction of a written document is purely a matter of law in all cases when the meaning and intention of the parties are to be collected from the instrument itself. Thus the construction of records and deeds, and other express contracts, is matter of law for the court, and not of fact for the jury. Macbeth v. Holdiman, 1 Term, 180; 1 Stark. Ev., 463. If the intention of the parties in making a contract is a matter of fact for the jury, then that intention, being out of the deed, could be proved by parol, and parol evidence would be receivable to alter (56) the legal construction of the instrument. This cannot be. See 2 Stark. Ev., 553; Hoar v. Graham, 3 Camp., 57; Hogg v. Smith, 1 Taun., 347.

We might satisfy ourselves by stopping at this point, and for this error send the cause back to another jury; but as we are of opinion that the plaintiff cannot recover in this action, we will proceed to state our reasons. The first contract, made on 3 March, 1842, was an executed contract. Sizemore had made his conveyance to Morrow, and the latter had executed his bond for the purchase money. The lot and houses were the property of Morrow, to every intent and purpose, free from any lien in favor of Sizemore. In October following the parties enter into a new contract. Morrow conveys the same premises back to Sizemore, the latter giving him a bond to make title when the purchase money shall be paid. If the bond had stopped here, it might well be questioned whether the first contract in all its parts was rescinded, and whether the transaction was not merely in the nature of a mortgage. But it goes on, and by the latter clause alters the character of the original contract entirely; for if Morrow does not pay the purchase money, it is made a part of the contract that he shall pay rent for the premises from the time he took possession. This puts it in the power of either to repudiate the contract of purchase at law, and makes Morrow the tenant of Sizemore. This latter contract is so essentially different from the first that the two cannot, in any of their parts, stand together, and the bond of 2 March, being a part of the first contract, must be considered, as between these parties, discharged at law. What may be the equities of these parties we cannot, sitting in a court of law, decide.

PER CURIAM. Venire de novo.

Cited: Miller v. Hahn, 84 N.C. 229; S. v. Poteet, 86 N.C. 614;Harris v. Mott, 97 N.C. 106; Wilson v. Cotton Mills, 140 N.C. 55.

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