Opinion
(Filed 29 April, 1942.)
1. Appeal and Error § 43 —
Petition to rehear is allowed in part in this case in order that the judgment as of nonsuit in respect to plaintiff's claim to the personal property involved may be set aside, it appearing that in the former decision of the Supreme Court which sustained the judgment as of nonsuit, only the question of the sufficiency of the evidence to support recovery of the real property was considered.
2. Evidence § 39 — Parol agreement for purchase of personalty held not merged in written option which referred to realty alone.
Plaintiff contended that defendants entered into a parol agreement to purchase a certain 158-acre farm and to later convey the farm and certain farm machinery thereon to plaintiff for a stipulated price. It appeared that defendants thereafter gave plaintiff an option to purchase the farm less 13 acres, which option contained no reference to the personalty, and that plaintiff exercised the option with full knowledge of the facts. Held: While prior negotiations in regard to the realty were merged in the written option, the parol agreement for the purchase of the personalty was not, and plaintiff's evidence tending to show his purchase of the personalty, considered in the light most favorable to him, was sufficient to overrule defendants' motion to nonsuit on this aspect of the case.
PETITION to rehear case reported in 220 N.C. 504.
McKinnon Seawell for petitioner.
F. D. Hackett, Jr., and McLean Stacy for respondents.
BARNHILL, J., concurring.
STACY, C. J., dissenting.
WINBORNE and DENNY, JJ., concur in dissent.
Rehearing was allowed in order that the question of plaintiff's claim to certain personal property might be considered. The action was instituted primarily to establish a constructive trust in favor of plaintiff as to 13 acres of land, title to which had been conveyed to one of the defendants. Judgment of nonsuit was entered in the court below and affirmed in this Court ( 220 N.C. 504), on the ground that plaintiff's evidence failed to establish his cause of action. The debate here was confined to that question. In affirming the judgment of nonsuit the fact that plaintiff had also alleged and offered some evidence tending to show that he had purchased the personal property described, and that defendants had wrongfully removed the same, was not considered.
Upon consideration of the petition to rehear we adhere to our former decision that plaintiff's cause of action to establish a trust was not made out, and the nonsuit on that phase of the case was properly entered. However, we think he was entitled to proceed on his allegations with reference to the personal property. While the amount involved is comparatively small, there is some evidence, taken in the light most favorable to him, tending to support his claim to this property. For the purpose of determining the question of plaintiff's right to recover the personal property described in his complaint, the judgment of nonsuit, in so far as it affects this phase of the case, only, is stricken out, and the case remanded to the Superior Court of Robeson County for further proceeding in accord with this opinion.
Petition allowed in part.