Rochlin v. P. S. West Construction Co.

DeNNY, J. In our opinion there was error in the ruling of the trial judge. And where a judge intimates an opinion on the law which lies at the foundation of the action, adverse to the plaintiff, or excludes evidence offered by the plaintiff which is material and necessary to make *445 out bis case, be may submit to a nonsuit and appeal. Nowell v. Basnight, 185 N.C. 142, 116 S.E. 87; Chandler v. Mills, 172 N.C. 366, 90 S.E. 299; Hayes v. R. R., 140 N.C. 131, 52 S.E. 416; Hickory v. R. R., 138 N.C. 311, 50 S.E. 683; Tiddy v. Harris, 101 N.C. 589, 8 S.E. 227; Mobley v. Watts, 98 N.C. 284, 3 S.E. 677. Tbis is not an action for specific performance, but one for tbe recovery of money paid to tbe defendant, as part of tbe purchase price of real property, pursuant to tbe terms of a parol agreement wbicb tbe plaintiff alleges tbe defendant breached. In tbe case of Carter v. Carter, 182 N.C. 186, 108 S.E. 765, tbe Court said: “We have solemnly adjudged in tbis Court, more than once, that where there is a parol contract to convey land, tbe full amount of tbe purchase money is paid, tbe vendee enters into possession and tbe vendor afterwards repudiates tbe contract by refusing to make a deed for tbe land, tb purchaser may recover tbe price of tbe land so paid by him (Improvement Co., v. Guthrie, 116 N. C. 381), and further that where tbe vendor elects so to repudiate bis parol contract by refusing to convey and sets up tbe Statute of Frauds, tbe purchaser may recover tbe amount paid by him for tbe land under bis prayer for general relief, although tbe action be for specific performance.” In Improvement Co. v. Guthrie, cited above, it is'said: “If A and B contract for tbe sale of tbe land by parol and tbe vendor elects to repudiate tbe contract, the vendee may recover back tbe amount be bad paid under tbe contract ... A parol contract for land is not void, except at tbe instance of tbe party who is allowed and does plead tbe statute, and neither party who repudiates tbe contract can take any advantage or benefit under it.” Wilkie v. Womble, 90 N.C. 254; Barnes v. Brown, 71 N.C. 507; Albea v. Griffin, 22 N.C. 9. In tbe last cited case tbe Court held that tbe payment of tbe purchase price, tbe taking of possession of the premises, and making improvements thereon would not entitle tbe vendee to specific performance of tbe parol agreement; and further held that “no action will lie in law or equity for damages because of nonperformance.” Even so, tbe Court said: “We are nevertheless of tbe opinion that tbe plaintiff has an equity wbicb •entitles him to relief, and that parol evidence is admissible for tbe purpose of showing that equity.” Therefore, we bold that while tbe plaintiff is not entitled to establish bis parol agreement with tbe defendant for tbe purpose of obtaining specific performance thereunder, G.S. 22-2, since the agreement as alleged is denied, McCall v. Institute, 189 N.C. 775, 128 S.E. 349; Arps v. Davenport, 183 N.C. 72, 110 S.E. 580; Henry v. Hilliard, 155 N.C. 372, 71 S.E. 439; Miller v. Monazite Company, 152 N.C. 608, 68 S.E. 1; be may do so for tbe purpose of determining whether be is entitled to re *446 cover the amount lie bas paid tbe defendant under such, agreement. And it is clearly evident this can only be done by oral testimony. Luton v. Badham, 127 N.C. 96, 37 S.E. 143; Pass v. Brooks, 125 N.C. 129, 34 S.E. 228; Tucker v. Markland, 101 N.C. 422, 8 S.E. 169; Pitt v. Moore, 99 N.C. 85, 5 S.E. 389; Wilkie v. Womble, supra; Kivett v. McKeithan, 90 N.C. 106. Cf. Grantham v. Grantham, 205 N.C. 363, 171 S.E. 331; Grant v. Brown, 212 N.C. 39, 192 S.E. 870. If, on the other hand, it is determined that the plaintiff has breached the parol agreement as alleged by the defendant, he will not be entitled to recover the amount paid thereunder. Improvement Co. v. Guthrie, supra. There is error in the ruling of the court below. Error.