Smith v. . Pritchard

92 S.E. 257, 173 N.C. 720, 1917 N.C. LEXIS 394

• Court: Supreme Court of North Carolina
• Decided: May 2, 1917
• Status: Published

Opinion

Per Curiam.

The exception to the refusal to enter a judgment of nonsuit at the conclusion of the plaintiff’s evidence was waived by the introduction of evidence by the defendant (Rev., sec. 539), and as there is neither allegation of fraud in procuring or executing the agreement of 17 February, 1908, nor allegation that any stipulation was omitted therefrom by mistake, the rights of the parties depend upon a construction of the two writings entered into by the plaintiff and the defendant.

The contract of 12 April, 1906, is an agreement on the part of the plaintiff to sell to the defendant J. L. Pritchard the judgment in controversy and 148 acres of land in consideration of the payment of $25 in cash and $1,100 on the first day of January, 1907, with interest from date.

The agreement of 17 February, 1908, by express language surrenders and annuls the contract of 12 April, 1906, and contains an agreement to accept in lieu of said contract a deed in fee simple for the land and to execute a mortgage on the same to secure the payment of $825 to the plaintiff.

There is in this second agreement no reference to the judgment, and as there is no contention that there was any other contract between the jdaintiff and the defendant, and as the agreement of 12 April, 1906, in which it was agreed that the judgment should be sold, was surrendered and annulled, there is nothing to show that the defendant has acquired any right or title to the judgment.

The extention of time, which is recited in the latter agreement, is a sufficient consideration to support it (Lowe v. Weatherly, 20 N. C., 353; Chemical Co. v. McNair, 139 N. C., 326), and if this were not so, the defendant, having accepted the deed and executed the mortgage pursuant to its terms, cannot be heard to question its validity.

We are therefore of opinion that there was no error in instructing the jury to answ'er the issues in favor of the plaintiff, and this renders it unnecessary to discuss the other exceptions raised in the record.

No error.