Chason v. . Marley

*845 Schen.ck, J. Tbe defendants, tbe parties sought to be charged in this action, could simply deny tbe contract alleged, or they could plead tbe statute of frauds, or they could do both as they have elected so to do, and if either plea is made good tbe said contract cannot be enforced, and tbe action cannot be maintained. Henry v. Hilliard, 155 N. C., 372, 71 S. E., 439, and eases there cited. Tbe plaintiff relied upon certain receipts given to him from time to time by tbe defendants and certain checks given by him to defendants which were accepted, endorsed, and cashed by the defendants to satisfy the statute of frauds (G-. S., 22-2). The statute reads: “All contracts to sell or to convey any lands, ... or any interest in or concerning them, . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing" and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” The receipts relied upon by the plaintiff to satisfy the statute are substantially in the following words: “Received of Pete Chason Thirty-five & no/100 Dollars, $25.00 on principal, $10.00 on interest. $35.00. Jessie Marley.” None of such receipts or checks given therefor make any mention of an agreement by the defendants to sell. The plaintiff likewise relied upon certain receipts from the defendants for taxes paid by him on the property. These receipts are in substantially these words: “Received of Pete Chason Thirteen & 05/100 Dollars for 1941 taxes on house and lot. $13.05. Jessie Marley.” None of these receipts make any mention of an agreement by the defendant to sell. “A contract which the law requires to be in writing can be proved only by the writing itself, not as the best, but as the only admissible evidence of its existence.” Morrison v. Baker, 81 N. C., 76; Bonham v. Craig, 80 N. C., 224. “The agreement must adequately express the intent and obligation of the parties. Parol evidence cannot be received to supply anything which is wanting in the writing to make it the agreement on which the parties rely.” Mayer v. Adrian, 77 N. C., 83. See, also, Keith v. Bailey, 185 N. C., 262, 116 S. E., 729; Simpson v. Lumber Co., 193 N. C., 454, 137 S. E., 311; Kluttz v. Allison, 214 N. O., 379, 199 S. E., 395; Smith v. Joyce, 214 N. C., 602, 200 S. E., 431. Since the contract upon which the plaintiff’s alleged cause of action is bottomed rests solely in parol, and since the said contract is one to sell and convey lands and no memorandum thereof has been put in writing and signed by the party charged therewith, or by any person by him thereto lawfully authorized, it cannot, under the statute, be enforced. The evidence adduced is legally insufficient to support the alleged contract. Holding as we do that the evidence does not satisfy the statute of frauds and that the alleged contract to convey lands therefore cannot be *846 enforced, it becomes unnecessary for us to decide the question posed on the record as to whether Jessie Marley was duly authorized to act for and bind her codefendant, Lena Marley. For the reasons given, the judgment of the Superior Court dismissing the action at the cost of the plaintiff and his surety must be affirmed, and it is so ordered. Affirmed.