Lewis v. Allred

106 S.E.2d 689 (1959)

249 N.C. 486

W. Glenn LEWIS v. Walter ALLRED, Individually and as Executor of The Estate of D. Frank Allred, Deceased, and as Agent for Lessie F. Allred, May Allred Elliott, et vir., John P. Elliott, Fred E. Allred, et ux., Thelma L. Allred, Johnnie H. Allred, et ux, Pauline D. Allred, and Etta Allred Prook, et vir., George D. Prook, and Lessie F. Allred, Individually, May Allred Elliott, et vir., John P. Elliott, Individually, Fred E. Allred, et ux., Thelma L. Allred, Individually, Johnnie H. Allred, et ux., Pauline D. Allred, Individually, and Etta Allred Prook, et vir., George D. Prook, Individually.

No. 600.

Supreme Court of North Carolina.

January 28, 1959.

Hines & Morrisette, Cooke & Cooke, Greensboro, for plaintiff.

Long, Ridge, Harris & Walker, Burlington, for defendants.

DENNY, Justice.

The appellees deny in their answer that they contracted with the plaintiff on or about 1 February 1956 as alleged in the complaint. They also allege that the paper writing dated 1 February 1956 and signed "Estate of D. Frank Allred, By: Walter Allred, Extr.," acknowledging the receipt of $100 as part payment on the purchase of the Frank Allred Farm is not a contract to sell or convey lands in writing signed by the party to be charged therewith, as required by the statute of frauds, and they pleaded the statute G.S. § 22-2 in bar of any recovery.

There is no merit in this contention. The party or parties to be charged within the meaning of the statute in this action are the defendant Walter Allred and those for whom he was authorized to act. The memorandum involved in this appeal meets the requirements of the statute and the court below properly so ruled. Hall v. Misenheimer, 137 N.C. 183, 49 S.E. 104, 107 Am.St.Rep. 474; Lewis v. Murray, 177 N.C. 17, 97 S.E. 750; Clegg v. Bishop, 188 N.C. 564, 125 S.E. 122. Cf. Elliott v. Owen, 244 N.C. 684, 94 S.E.2d 833.

The plaintiff assigns as error the following portion of the charge: "Or if you find, members of the jury, that the defendants, other than Walter Allred, had no dealings whatever with the plaintiff and didn't agree to sell him the farm and that the first dealings they had with it was to have their attorney send him a deed, that is a copy of a deed they had executed, then, of course, you would answer the first issue no."

This instruction was erroneous. While some of the defendants testified, other than Walter Allred, that they never signed anything except the deed and never authorized anyone to sign for them, the letter of *692 24 July 1956 to the plaintiff from the defendants' attorneys states in unequivocal language that "it is understood that you have agreed with Mr. Walter Allred, who is acting as agent for these heirs and devisees * * *" There can be no doubt about the authority of Walter Allred to sell the lands in question in light of the evidence disclosed on this record. Neither is there any controversy about the consideration agreed upon for the purchase and sale of the property.

The owner of real estate may sell such property through an agent, and when so acting the owner is not required to sign the agreement or to communicate with the purchaser. Moreover, the authority of a duly authorized agent to contract to convey lands need not be in writing under the statute of frauds. Wellman v. Horn, 157 N.C. 170, 72 S.E. 1010; 8 Am.Jur., Brokers, section 62, page 1019. The agent may sign the contract to sell and convey in his own name or in the name of his principal or principals. Hargrove v. Adcock, 111 N.C. 166, 16 S.E. 16; Neaves v. North State Mining Co., 90 N.C. 412, 47 Am.Rep. 529; Washburn v. Washburn, 39 N.C. 306; Oliver v. Dix, 21 N.C. 158. Furthermore, the authority of an agent to sell the lands of another may be shown aliunde or by parol. Hargrove v. Adcock, supra.

There is no evidence on this record to indicate that anyone was authorized to sell the lands involved herein to the plaintiff other than Walter Allred. Therefore, the time for closing the sale and purchase of the property may not be controlled by what the other devisees might have supposed or understood, but must be governed by the agreement between the plaintiff and their agent, Walter Allred.

In 49 Am.Jur., Statute of Frauds, section 356, page 667, it is said: "A memorandum of an agreement for the sale of land is not necessarily insufficient to satisfy the requirements of the statute of frauds because the time for performance is not stated therein. In case of an executory contract of sale, where the time for the execution of the conveyance or transfer is not limited, the law implies that it is to be done within a reasonable time, and the failure to incorporate in the memorandum such a statement does not render it insufficient. * * *" See also 37 C.J.S. Frauds, Statute of § 196, p. 685.

The plaintiff is entitled to a new trial, and it is so ordered.

New trial.