Kendall v. Pinnix Realty Co.

Supreme Court of North Carolina

Kendall v. Pinnix Realty Co.

111 S.E. 705, 183 N.C. 425, 1922 N.C. LEXIS 288

DecidedApril 26, 1922

StatusPublished

This text of 111 S.E. 705 (Kendall v. Pinnix Realty Co.) 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

Kendall v. Pinnix Realty Co., 111 S.E. 705, 183 N.C. 425, 1922 N.C. LEXIS 288 (N.C. 1922).

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Opinion

Adams, J.

Since tbe evidence for tbe plaintiff tends to support tbe cause of action set out in tbe complaint tbe motion to nonsuit was properly denied; but tbe rights of all tbe parties to tbe contract cannot be determined in a controversy solely between tbe plaintiff and tbe defendant. As we understand tbe record, tbe parties admit tbat as to tbe defendant tbe receipt introduced in evidence is a sufficient compliance with tbe statute of frauds, and tbat against tbe defendant specific performance may be enforced. But tbe plaintiff contends tbat neither be nor bis father is bound by tbe receipt, and tbat either of them has tbe right to repudiate tbe alleged contract. C. S., 988; Burris v. Starr, 165 N. C., 657; Lewis v. Murray, 177 N. C., 17. Accordingly, tbe plaintiff prosecutes this suit to recover tbe amount paid- as a part of tbe purchase price of tbe land. In doing so be repudiates tbe contract and renounces bis right to demand performance by tbe defendant. It will be noted tbat tbe defendant acknowledges receipt of tbe $500 from both tbe plaintiff and bis father. Tbe latter, who is not a party to tbe suit, appears to have an equitable interest and a right to assert it in this action, and it does not appear tbat be has voluntarily abandoned bis rights. Besides, tbe defendant- is entitled to an opportunity to have tbe entire controversy settled in one action. J. A. Kendall should therefore be made a party. If be is unwilling to become a coplaintiff, summons may be issued against him as a defendant. O. S., 457. To this end a new trial is necessary. Let this be certified as provided by law.

New trial.

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Adams, J.

Since tbe evidence for tbe plaintiff tends to support tbe cause of action set out in tbe complaint tbe motion to nonsuit was properly denied; but tbe rights of all tbe parties to tbe contract cannot be determined in a controversy solely between tbe plaintiff and tbe defendant. As we understand tbe record, tbe parties admit tbat as to tbe defendant tbe receipt introduced in evidence is a sufficient compliance with tbe statute of frauds, and tbat against tbe defendant specific performance may be enforced. But tbe plaintiff contends tbat neither be nor bis father is bound by tbe receipt, and tbat either of them has tbe right to repudiate tbe alleged contract. C. S., 988; Burris v. Starr, 165 N. C., 657; Lewis v. Murray, 177 N. C., 17. Accordingly, tbe plaintiff prosecutes this suit to recover tbe amount paid- as a part of tbe purchase price of tbe land. In doing so be repudiates tbe contract and renounces bis right to demand performance by tbe defendant. It will be noted tbat tbe defendant acknowledges receipt of tbe $500 from both tbe plaintiff and bis father. Tbe latter, who is not a party to tbe suit, appears to have an equitable interest and a right to assert it in this action, and it does not appear tbat be has voluntarily abandoned bis rights. Besides, tbe defendant- is entitled to an opportunity to have tbe entire controversy settled in one action. J. A. Kendall should therefore be made a party. If be is unwilling to become a coplaintiff, summons may be issued against him as a defendant. O. S., 457. To this end a new trial is necessary. Let this be certified as provided by law.

New trial.

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111 S.E. 705, 183 N.C. 425, 1922 N.C. LEXIS 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kendall-v-pinnix-realty-co-nc-1922.

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