Poe v. W. F. Smith & Co.

WahkeR, L, after stating tbe case: Tbe nonsuit as to tbe W. F. Smith Company was properly allowed. It held a mortgage on tbe land, and in order that plaintiff might acquire a good and unencumbered title to tbe land from Lennon it was necessary that tbe Smith Company should either release its security, or lien upon it; or join in tbe conveyance; but we can see nothing in tbe record wbicb tends to connect it with any fraudulent transaction in connection with tbe matter. Tbe *72 Smith Company merely agreed to the sale and conveyance to plaintiff subject to their prior lien, and received the first payment of $1,500, in reduction thereof; but there is no evidence to show that they knew of any representations by Lennon or Baggett, false or otherwise, and the jury have found that there were none. If Lennon and Baggett committed no fraud, how can it be said that the Smith Company did? If Baggett was the attorney of the Smith Company (as contended by plaintiff), and anything he said or did to the injury of the plaintiff is to be imputed to that company, as his principal, the jury having acquitted him of all wrong, it follows, of course, that there is nothing to impute to the company. The jury have simply found the facts upon disputed testimony in favor of the defendants. But we find no evidence in the record upon which the Smith Company can be made liable to the plaintiff for any. false or fraudulent representations if such had been made by Lennon or Baggett. As to the defendants Baggett and Lennon, the verdict is, upon conflicting evidence, that the allegations of the plaintiff as to false and fraudulent representations are not true, and, as to this feature of the case, the plaintiffs have utterly failed. The charge of the court is not in the record, and there is no exception taken to it. It stands, therefore, unchallenged by the plaintiff -and as a correct exposition of the law applicable to the evidence. This, of course, reduces the case, thus far, to a pure issue of fact, which has been settled against the plaintiff. We do not see how the exclusion of the evidence as to the bid at the sale under the mortgage held by the Smith Company was prejudicial to the plaintiff, if it was competent and offered by him in due time. If admitted, it would not have turned the scales in favor of the plaintiff upon the issues as to whether false and fraudulent representations had been made by Lennon and Baggett. In the aspect of the case then presented, it would not have aided the jury in deciding the vital question as to the alleged representations. If Lennon and Baggett had dishonestly and intentionally misled and deceived the plaintiff by false statements, which induced him to enter into the contract, he would be entitled to the relief demanded by him without regard to the value of the land, for the alleged fraud did not depend upon value so much as it did upon the fact whether the representations had been made and were false, so as to lead the plaintiff to do what otherwise he would not have done. Value is sometimes competent to be considered, and may be a very important element in certain cases of fraud, but not here, in the light of this -evidence. The Smith Company had been dismissed from the case when this evidence was offered. It is not a correct proposition, though, as contended by the defendants, that plaintiff must establish his allegation of fraud, in a case of this kind, by clear, strong, and convincing proof, but only by a pre *73 ponderance of the evidence. Ray v. Patterson, 170 N. C., 226; Harding v. Long, 103 N. C., 1; Avery v. Stewart, 136 N. C., 426; Glenn v. Glenn, ibid., 729; Lamb v. Perry, 169 N. C., 436. This is an action brought for tbe purpose of setting aside a deed for fraud, and not to correct or reform a written instrument or to establish a parol trust. Tbe distinction between tbe two classes of cases is ba.sed upon tbe difference in tbe presumption of tbe law arising in each. A fraud is not presumed, except where there is some confidential or peculiar relation between tbe parties, not necessary to mention, a.s it does not exist here. Tbe law, therefore, requires that be who alleges fraud must prove it; but it does presume that tbe writing of tbe parties truly expresses their agreement; and for that reason, when an attempt is made to vary it, or to reform it, tbe party who seeks to do so must take tbe laboring oar and satisfy tbe jury of tbe mistake in tbe writing by stronger proof than is ordinarily required in civil cases; in other words, by proof clear, strong, and convincing. Lehew v. Hewett, 138 N. C., 6; Lamb v. Perry, supra; Perry v. Ins. Co., 137 N. C., 402; Bay v. Patterson, supra. Tbe only serious question in tbe case grows out of tbe second cause of. action set up in tbe supplemental complaint, where it is alleged that Hiram Baggett agreed “to take tbe land off of plaintiff’s bands at tbe price of $6,100, or a profit to tbe plaintiff of $600.” Plaintiff’s intention to charge by this language that Baggett bad agreed to buy tbe land from him for $6,100 is fully evidenced by subsequent allegations of tbe complaint, especially tbe fifth paragraph of bis complaint, and tbe prayer for judgment, which are as follows: “That tbe plaintiff stands ready and willing to comply with and carry out tbe contract with tbe said Hiram Baggett, and to convey tbe land to tbe said Hiram Baggett or to him and bis codefendants upon payment to plaintiff by him or them of tbe purchase price agreed upon, to wit, $6,100, .and interest on tbe same from 16 May, 1913. “Wherefore, plaintiff demands judgment that be recover of tbe defendants tbe sum of $6,100, with interest from 16 May, 1913.” Tbe words, “and to convey to tbe said Hiram Baggett or to him and bis codefendants, upon payment to plaintiff by him or them of tbe purchase price agreed upon,” manifestly show that plaintiff was suing upon a contract to convey land* and not upon one merely for tbe division of tbe profits of a sale of tbe land to another, and tbe prayer for judgment extends to tbe entire amount of tbe price of $6,100, and is not restricted to tbe amount of tbe profit of $600. This being so, tbe case is governed by tbe principle that tbe statute of frauds requires tbe contract to be in writing and to be signed by tbe party to be charged or by bis duly authorized agent. Eevisal, sec. 976. As it is sought to charge tbe defendant Baggett upon this contract, be is protected by tbe statute. Mizell *74 v. Burnett, 49 N. C., 249; Green v. R. R., 77 N. C., 95; Miller v. Monazite Co., 152 N. C., 608; Brown v. Hobbs, 154 N. C., 544. This was not an executed sale, where the deed, under the contract to convey, had been made to Baggett, with a promise that upon a sale of the land to another he would divide the profits with the plaintiff, as in Brown v. Hobbs, 147 N. C., 73. The plaintiff, therefore, has failed to show a case within the principle decided in Brown v. Hobbs, supra, or Michael v. Foil, 100 N. C., 78; Little v. McCarter, 89 N. C., 233, and the cases cited in Brown v. Hobbs, 147 N. C., 73, and 154 N. C., 544. The promise here is not collateral to an executed contract of sale, but the agreement to sell and the reciprocal promise to buy are still executory in form and substance. As said by Sewage, C. J., in Hess v. Fox, 10 Wendell (N. Y.), 436, “No question can arise on the validity of the agreement to sell. That was performed, and the remaining part was to pay over money, supported by the consideration of land conveyed to the promisor.” The rulings of the court are approved by us. No error.