Howell v. . Pate

Plalntiee’s Appeal. Stacy, J. Upon the entire record, considering the evidence, the charge of the court, and the verdict, it is not sufficiently clear for us to say whether or not the partial payment of $500, made at the time of the execution of the contract, was considered and taken into account by the [119] jury in answering the issue of damages. By reason of this uncertainty we have decided to send the case back for a new trial. It has been held with us in a number of cases that a verdict may be given significance and correctly interpreted by reference to the pleadings, the evidence, and the charge of the court. Reynolds v. Express Co., 172 N. C., 487; Bank v. Wilson, 168 N. C., 557, and S. v. Murphy, 157 N. C., 615. Thus it would appear that a new trial should be awarded when, upon a proper perusal and examination, the true intent and meaning of the verdict is found to be doubtful, uncertain, and ambiguous. Donnell v. Greensboro, 164 N. C., 330. “The proper measure of damages for the breach by a vendor of his contract to sell real property is the difference between the contract price and the market value of the land at the time of the breach, plus any part of the purchase price which has been paid, with interest.” Hale on Damages, p. 364; Nichols v. Freeman, 33 N. C., 99; LeRoy v. Jacobsky, 136 N. C., 443; Hopkins v. Lee, 6 Wheat., 109. DEFENDANT’S APPEAL. Defendant moved for judgment on the pleadings, which was overruled ; and this is the only point raised on his appeal. Defendant took the position that the paper-writing above set out was an option, and that the oral agreement to extend the time of payment for a period of two weeks was such a covenant as is required to be put in writing, under the statute of fraud. Holding, as we do, that the instrument, which forms the basis of this action, is a contract to convey land and not an option, it follows that,his Honor’s ruling on defendant’s motion was correct. The agreement contains the necessary elements of an executory contract, to wit: mutuality of obligation and remedy. Pollock v. Brookover, 6 L. R. A. (N. S.), 403; Davis v. Martin, 146 N. C., 281. As said in Davis’s case: “There is a decided distinction between an option to purchase, which may be exercised or not by the prospective purchaser, and an absolute contract of sale, wherein one of the parties agrees to sell and the other to buy certain property, the sale to be completed within an agreed time. In the latter case the mere lapse of time with a contract unperformed does not entitle either party to refuse to complete it, and, therefore, time is not of the essence of the contract; but where the contract is merely an option, generally without consideration, of course time is of the essence.” The true character of thq instrument is manifest from its recital of $500 “to bind said trade,” evidently meaning a part of the purchase money, as the $6,500 is called “the balance of purchase price.” On plaintiff’s appeal, New trial. Qn defendant’s appeal, No error.