Grant v. . Brown

192 S.E. 870, 212 N.C. 39, 1937 N.C. LEXIS 230

Opinion

Stagy, C. J.

The record, as it appears here, is barren of any evidence to support the verdict on the second cause of action. This will be stricken out, and as thus modified, judgment will be entered for the plaintiff on the first cause of action.

The defendant having denied any extension of the option, and pleaded the statute of frauds, will not be permitted to retain moneys paid on the purchase price after the expiration of the option. Warren v. Dail, 170 N. C., 406, 87 S. E., 126. To hold otherwise would be to allow the defendant “to have his cake and eat it too.” Young v. Hood, Comr., 209 N. C., 801, 184 S. E., 823. This is not after the manner of fair dealing. Whitmire v. Ins. Co., 205 N. C., 101, 170 S. E., 118.

The cause will be remanded for judgment accordant herewith.

Modified and affirmed.

DeviN and BaeNhill, JJ., took no part in the consideration or decision of this ease.