Burns v. . McFarland

Walker, J. , The plaintiff alleged in his complaint that the defendant agreed to sell him certain furniture in the Stoner Hotel, situated in Asheville, the price to be ascertained as soon as an inventory could be taken and the invoices ex *383 amined, and that when this was done the defendant would’ assign to him an unexpixed lease he then had of said hotel and a new lease which the defendant would get from Stoner, the owner of the hotel, for the next year. On 10 June, 1907, the defendant gave the plaintiff a receipt for one dollar “on account of the sale of the Stoner Hotel.” Without setting out the evidence, it appears to us therefrom that the plaintiff failed to comply with his part of the contract and clearly abandoned the same, and that thereafter the defendant sold a one-third interest in the furniture to one J. L. Page for a valuable consideration, Page having no notice of the prior contract between the defendant and the plaintiff. The latter applied for an injunction to restrain the defendant from exercising any control over the premises and from conducting the business of a hotel thereon, and also prayed for a specific performance of the contract. The defendant and Page are now partners, engaged in conducting the hotel business in the Stoner building. The lease by Stoner to the defendant contained a stipulation that it should not be assigned or transferred without the written consent of Stoner, and he has never consented in writing to any assignment or transfer of the same, nor has the plaintiff ever applied to him for one. The motion, upon the pleadings and affidavits, was denied, and plaintiff appealed. • This Court, on appeal from an order refusing or continuing an injunction to the hearing, can review the findings of fact made by the court below. Jones v. Boyd, 80 N. C., 258; Evans v. Railroad, 96 N. C., 47; Roberts v. Lewald, 107 N. C., 305. ITis Honor held that Page was a purchaser for value and without notice, and, therefore, acquired a good title as against the plaintiff, and that, consequently, the defendant could not be compelled to specifically perform his contract, as he-could not convey the title (Sprinkle v. Wellborn, 140 N. C., 163), and-that the plaintiff’s remedy was by an action for damages for a breach of his contract. Winders v. *384 Hill, 141 N. C., 694; Sprinkle v. Wellborn, supra. Without reciting tbe facts in detail, we are convinced by tbe clear weight of tbe evidence that tbe plaintiff not only failed to comply with bis contract, if be bad one, but that be abandoned and intended to abandon tbe same. Rights acquired by contract may be relinquished or abandoned either by agreement or by conduct clearly indicating such a purpose. Falls v. Carpenter, 21 N. C., 237; Faw v. Whittington, 72 N. C., 321; see, also, Redding v. Vogt, 140 N. C., at p. 567, and cases there cited. We are not concluded here by tbe reason given in tbe court below for its decision. If there is any valid and sufficient ground supporting tbe judgment and appearing in tbe record, we will adopt it and affirm tbe judgment. Tbe order of tbe court below was right, upon tbe facts of tbe case, and we approve it. Tbe plaintiff is not estopped by this decision from proceeding against tbe defendant to recover damages for any breach of tbe contract, if be can show that be made one and bas not disabled bimself from performing it, or otherwise committed a breach of it. We are only passing on tbe facts ascertained from ex parte affidavits, for tbe purpose of reviewing tbe interlocutory order of tbe Judge upon tbe motion of tbe plaintiff to continue tbe injunction to tbe bearing and to appoint a receiver. Carter v. White, 134 N. C., 466; Solomon v. Sewerage Co., 142 N. C., 439. It is not necessary to examine tbe reason assigned by tbe learned Judge who presided at tbe bearing for tbe purpose of passing upon its correctness, as we find abundant reasons, apart from it, for approving tbe ruling. Affirmed.