Harry's Cadillac-Pontiac Co. v. Norburn

Seawell, J. We need.consider here only one exception taken by the plaintiff on the trial; the exception to the judgment of nonsuit on the demurrer to the evidence. The trial judge did not state on what theory the nonsuit was granted. He did not need to do so if the judgment could be sustained on any legal ground. But under the noted exception we may deal with the attack on plaintiff’s position on the theory that one or more of the objections discussed in the brief and oral argument prevailed. The theory that the contract of sale on which plaintiff sues was a mere option or unilateral offer on the part of Dr. Norburn because it was not re-signed by Blomberg after certain changes in it were called to his attention, is not sound. Blomberg’s acceptance of the agreement as changed, with the knowledge that it was to be so notarized and recorded, was a ratification and adoption of the signature without affixation of another. The fact that assignment of the rights under the contract by Blomberg to the corporation was in parol, if it was, and, therefore, within the statute of frauds, is not an available defense to the seller, in this action. Under the evidence the assignment was an executed transaction which, from the *28 defendant’s angle in the controversy, concerns tbe parties to that transaction alone. “This defense is a personal one like the defense of infancy, the statute of limitations, usury and similar defenses.” 49 Am. Jur., sec. 588, p. 896. It is, therefore, a matter inter partes to the transaction. “The purpose of the statute is to prevent fraud upon individuals charged with participation in transactions coming within this purview and not upon the public at large.” Allison v. Steele, 220 N.C. 318, 17 S.E. 2d 339. Moreover on cross-examination Blomberg was permitted to testify without objection that he signed the minutes of the meeting in which the assignment was completely set forth. There is no question that such a contract is assignable and that it puts the seller under its stipulated obligations to the purchaser of the contract and entitles the assignees to specific performance. Bispham’s Equity, 9th Ed., 592; Casket Co. v. Wheeler, 182 N.C. 459, 109 S.E. 378; G.S. 1-57. The plaintiff’s evidence, too, is sufficient to generate the inference that in the transaction Blomberg acted as the agent for the corporation, bought the property for it, “was buying for it all the time,” and, if this is believed, the corporation would have the right to sue in its own name. “The right of a principal to maintain an action to enforce a contract made by his agent in his own name without disclosing the name of the principal is well settled.” Williams v. Honeycutt, 176 N.C. 102, 96 S.E. 730; Nicholson v. Dover, 145 N.C. 18, 58 S.E. 444. The contract sets out the manner in which the purchase price of $8,000 shall be paid, acknowledges the payment of $250 for execution and delivery of the contract and requires payment of the balance, one-half cash in one and two years, “additional cash to be paid upon delivery of deed, and the remaining to be secured by a first deed of trust to be given back on said lot supported by two notes of equal amount due and payable on or before one and two years after date of said deed of trust.” The objection that such a contract necessarily imports that credit is given alone to the person with whom the transaction is personally carried out and that no other person or concern can be substituted for it because of the changes in the person to whom credit is given would, ipso facto, defeat the assign-ability of such a property right at the arbitrary pleasure of the seller. We think that unless adequately expressed in the instrument itself, or in some circumstance of judicially recognizable nature dehors the agreement, it cannot be raised as a defense. Nothing of the sort appears here; and since the contract calls for payment of half the purchase price in cash with balance secured on the premises, the suggestion seems pointless. In this contract it does not appear that time was the essence of the agreement as it often is in a mere option. “It is agreed that settlement *29 under tbis contract shall be completed on or before November 20, A. D. 1945.” The agreement itself is not worded to. avoid the contract altogether or expressly vitiate it, if settlement is not made at that time. However, if we concede it to be of the essence of the contract, the evidence of the plaintiff is still to be considered as to whether the plaintiff or the plaintiff’s agent was prevented from complying with this provision through the non-co-operation of the seller, or whether, under the circumstances, its strict compliance had been waived; whether the inability to “settle,” if it required tender in the strict sense, was not due to the fault ■ of the defendant by rendering himself inaccessible in the first place, and later by his attorney, and presumably his agent, Mr. Pangle, who advised a later date would serve. 62 C. J., p. 657, see. 5. We cannot say that there are no inferences from the evidence which tend to support plaintiff’s contentions. In withdrawing it from the jury there was error. The judgment of nonsuit is reversed. Eeversed.