Brannon v. Wood

Supreme Court of North Carolina

Brannon v. Wood

79 S.E.2d 256, 239 N.C. 112, 1953 N.C. LEXIS 371

CourtSupreme Court of North Carolina

DecidedDecember 16, 1953

Docket665

StatusPublished

Cited by3 cases

This text of 79 S.E.2d 256 (Brannon v. Wood) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brannon v. Wood, 79 S.E.2d 256, 239 N.C. 112, 1953 N.C. LEXIS 371 (N.C. 1953).

Pincite

Opinion

Parker, J.

Interpreting the evidence in the light most favorable to the plaintiff, and giving to him the benefit of every inference which the *114 evidence fairly supports the evidence of plaintiff tends to show these facts. According to a contract entered into by them the plaintiff delivered his Plymouth automobile to the defendant and paid him $350.00 in cash, on the purchase price of defendant’s Oldsmobile automobile, and the defendant was to arrange the financing of the remainder due on the purchase price of the Oldsmobile automobile with the Industrial Finance Company of High Point. The contract was executory on the part of the defendant, who altogether failed to perform his part of the contract. The plaintiff did not take possession of the Oldsmobile automobile, but notified the defendant that he desired to rescind the contract, and get back his $350.00. The defendant refused, and still refuses, to give the money back to plaintiff.

It seems to us that the case should be submitted to the jury on the theory that if the plaintiff can show by the greater weight of the evidence that there was a contract as contended by him, that the defendant has failed altogether to perform his part of the contract, and that the plaintiff has rescinded the contract, then the plaintiff is entitled to recover back the $350.00 paid to the defendant as money had and received by the defendant to his own use, or as said in Hutchins v. Davis, 230 N.C. 67, p. 73, 52 S.E. 2d 210, “. . . he may resort to remedies calculated to place him in status quo. Thus, he can recover the purchase price, or any portion of it he may have paid . . .” 12 Am. Jur., Contracts, p. 1028; 17 C.J.S., Contracts, p. 926.

Neither the allegations of the complaint, nor the evidence offered by the plaintiff will support a judgment for the arrest and incarceration in the common jail of Guilford County of the defendant, if the plaintiff recovers and an execution upon the judgment rendered is returned unsatisfied in whole or in part. G.S. 1-409 et seq.

For the reasons set forth above the judgment of nonsuit is

Reversed.

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Parker, J.

Interpreting the evidence in the light most favorable to the plaintiff, and giving to him the benefit of every inference which the *114 evidence fairly supports the evidence of plaintiff tends to show these facts. According to a contract entered into by them the plaintiff delivered his Plymouth automobile to the defendant and paid him $350.00 in cash, on the purchase price of defendant’s Oldsmobile automobile, and the defendant was to arrange the financing of the remainder due on the purchase price of the Oldsmobile automobile with the Industrial Finance Company of High Point. The contract was executory on the part of the defendant, who altogether failed to perform his part of the contract. The plaintiff did not take possession of the Oldsmobile automobile, but notified the defendant that he desired to rescind the contract, and get back his $350.00. The defendant refused, and still refuses, to give the money back to plaintiff.

It seems to us that the case should be submitted to the jury on the theory that if the plaintiff can show by the greater weight of the evidence that there was a contract as contended by him, that the defendant has failed altogether to perform his part of the contract, and that the plaintiff has rescinded the contract, then the plaintiff is entitled to recover back the $350.00 paid to the defendant as money had and received by the defendant to his own use, or as said in Hutchins v. Davis, 230 N.C. 67, p. 73, 52 S.E. 2d 210, “. . . he may resort to remedies calculated to place him in status quo. Thus, he can recover the purchase price, or any portion of it he may have paid . . .” 12 Am. Jur., Contracts, p. 1028; 17 C.J.S., Contracts, p. 926.

Neither the allegations of the complaint, nor the evidence offered by the plaintiff will support a judgment for the arrest and incarceration in the common jail of Guilford County of the defendant, if the plaintiff recovers and an execution upon the judgment rendered is returned unsatisfied in whole or in part. G.S. 1-409 et seq.

For the reasons set forth above the judgment of nonsuit is

Reversed.

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Bluebook (online)

79 S.E.2d 256, 239 N.C. 112, 1953 N.C. LEXIS 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannon-v-wood-nc-1953.

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