Rivenbark v. . Teachey

Walker, J., after stating the case: The decision of this case, in a large measure, turns upon the fifth issue, for it must be *292 conceded that if the plaintiff bad not abandoned or released the original contract be is entitled to recover. No issue was submitted to the effect that the contract of 20 December, 1906, was substituted for that of 19 June, 1906, nor was there any sufficient averment of that kind in the answer, nor does the former contract show on its face that it was made in substitution for the latter. Tbe parties, after chaffering for some time, finally agreed to compromise and settle their differences, the defendants agreeing to convey certain lands, described by metes and bounds in a plat annexed to the written agreement, and said lands to contain 15 acres, and the plaintiff, on bis part, agreeing to surrender and release all interest under the Original contract, and to cancel the same, and the deed executed and deposited with the bank in pursuance thereof, when the deed for the land described in the agreement of 20 December, 1906, should be executed. Tbe defendants actually undertook to perform the latter contract by executing a deed for the land, but failed to include in their deed all the land which, according to a proper legal construction, was agreed to be conveyed. The letter of the plaintiff (in the form of a contract), dated 7 August, 1906, and addressed to “A. L. McGowan, cashier,” expressly states that the original contract which bad been deposited with the bank should not be canceled “until the first deed above-mentioned is executed.” The oral evidence also tends to show that the parties did not intend that the original option should be considered as annulleuntil the deed had been executed under the contract of 20 December, 1906. Tbe parol-testimony offered by the defendants was not admissible to show that they intended to convey only 15 acres by metes and bounds differing from those described in the plat, which was annexed to and made a part of the contract of 20 December, 1906. It would clearly contradict, or at least vary, the terms of that contract, and, in the absence of proper allegations and proof of fraud or mistake, would be in contravention of the rule of law excluding such testimony. Bank v. Moore, 138 N. C., 529; Evans v. Freeman, 142 N. C., 61; Mudge v. Varner, 146 N. C., 147. As said in Collins v. Land Co., 128 N. C., 567, “It is the offer of sale by the plat, and the sale in accordance therewith, that is the material thing which determines the rights of the parties.” A simple calculation, accord *293 ing to the definite boundaries by courses and distances, as shown on the plat, would have determined the number of acres the tract of land contained. Smathers v. Gilmer, 126 N. C., 759. It is evident tbat tbe parties were uncertain as to tbe number of acres embraced by tbe description of tbe tract of land intended to be conveyed to tbe plaintiff in lieu of tbat described in tbe option, and for tbat reason, caused tbe survey to be made in order to fix tbe boundaries of tbe land, without regard to tbe acreage. We cannot adopt tbe theory of tbe defendants, tbat they intended to sell and convey 15 acres of land which bad not been located, for such a contract would bave been void for uncertainty. We bave carefully examined tbe other exceptions, and find no error in tbe rulings of tbe court to which they were tahen. Tbe defendants bave lost tbe eases, because they failed to comply with tbe terms of the compromise, but on tbe contrary violated tbe rights of the plaintiff, under the option, by cutting the timber on the land and thereby diminishing, its value to the plaintiff. No Error.