{ "id": 8527077, "name": "HOMER BUFFALOE v. PATRICIA HART and LOWELL THOMAS HART", "name_abbreviation": "Buffaloe v. Hart", "decision_date": "1994-03-15", "docket_number": "No. 939SC430", "first_page": "52", "last_page": "60", "citations": [ { "type": "official", "cite": "114 N.C. App. 52" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "476 N.E.2d 11", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "oral contract within exception to statute of frauds where buyer gave check to seller in payment for truck even though buyer stopped payment on check the next day" } ], "opinion_index": 0 }, { "cite": "205 P.2d 623", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1949, "pin_cites": [ { "parenthetical": "enforceable contract where plaintiff delivered check to defendant on 23 December 1946 and defendant marked through her endorsement on check and returned it to plaintiff on 17 January 1947" } ], "opinion_index": 0 }, { "cite": "148 A.2d 362", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 2376906 ], "year": 1959, "pin_cites": [ { "parenthetical": "enforceable contract where plaintiff delivered check to defendant on 21 July 1957 and defendant returned it unendorsed by letter postmarked 6 August 1957" } ], "opinion_index": 0, "case_paths": [ "/vt/121/0088-01" ] }, { "cite": "524 F.2d 501", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1100560 ], "year": 1975, "pin_cites": [ { "parenthetical": "whether possession by seller of check from buyer for 30 days is \"acceptance\" poses issue for resolution by fact finder" } ], "opinion_index": 0, "case_paths": [ "/f2d/524/0501-01" ] }, { "cite": "428 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525862 ], "year": 1993, "pin_cites": [ { "page": "513-14" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0506-01" ] }, { "cite": "256 S.W. 731", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1923, "pin_cites": [ { "parenthetical": "question of whether plaintiff accepted check as part payment one of fact to be determined by jury" } ], "opinion_index": 0 }, { "cite": "226 S.W. 67", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1920, "opinion_index": 0 }, { "cite": "370 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "76" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526045 ], "year": 1988, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0719-01" ] }, { "cite": "352 P.2d 285", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 75046 ], "year": 1960, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/colo/143/0090-01" ] }, { "cite": "411 N.Y.S.2d 746", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1978, "pin_cites": [ { "parenthetical": "check for $100 on which was stated \"deposit on purchase of nine-foot strip\" which was not endorsed and letter stating \"not feasible to sell property\" were not sufficient memoranda to take oral agreement to sell land out of statute of frauds" } ], "opinion_index": 0 }, { "cite": "81 S.E. 929", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "pin_cites": [ { "page": "931", "parenthetical": "note drawn up by defendant, signed by plaintiff, not sufficient to satisfy statute of frauds because it did not obligate defendant to perform" } ], "opinion_index": 0 }, { "cite": "165 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661170 ], "year": 1914, "pin_cites": [ { "page": "661", "parenthetical": "note drawn up by defendant, signed by plaintiff, not sufficient to satisfy statute of frauds because it did not obligate defendant to perform" } ], "opinion_index": 0, "case_paths": [ "/nc/165/0657-01" ] }, { "cite": "104 S.E. 658", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1920, "pin_cites": [ { "page": "659", "parenthetical": "check collected by defendant with her written endorsement thereon, in which property is described as \"Watts Street House\" is sufficient writing within statute of frauds" } ], "opinion_index": 0 }, { "cite": "180 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653659 ], "year": 1920, "pin_cites": [ { "page": "376", "parenthetical": "check collected by defendant with her written endorsement thereon, in which property is described as \"Watts Street House\" is sufficient writing within statute of frauds" } ], "opinion_index": 0, "case_paths": [ "/nc/180/0375-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-201", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 763, "char_count": 17738, "ocr_confidence": 0.764, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3317838221456154 }, "sha256": "a48f0a850fbd4a5aa3935b5b66851834edbdfd50d0140dfdbd2e6de2f9a8f19d", "simhash": "1:e2e6d1339819b936", "word_count": 2959 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and ORR concur" ], "parties": [ "HOMER BUFFALOE v. PATRICIA HART and LOWELL THOMAS HART" ], "opinions": [ { "text": "GREENE, Judge.\nPatricia Hart and Lowell Thomas Hart (defendants) appeal from the trial court\u2019s denial of their motions for directed verdict and judgment notwithstanding the verdict in this action brought by Homer Buffaloe (plaintiff) for breach of contract.\nPlaintiff filed a complaint for breach of contract and damages in Franklin County Superior Court on 13 November 1989. Defendants, in their answers, denied the existence of the contract and contended the alleged contract was unenforceable because it violated the statute of frauds. The case was tried with a jury during the 28 September 1992 term of Franklin County Superior Court. Plaintiff presented evidence that tended to show that he is a tobacco farmer in Franklin County, North Carolina, has known defendants for about ten years and rented tobacco from them in 1988 and 1989. Plaintiff rented from defendants, pursuant to an oral agreement, five \u201croanoke box [tobacco] barns\u201d (the barns) located on their farm for use in his tobacco farming operations during the 1988 farming year. The agreement with defendants for rental of the tobacco and the barns was not reduced to writing and was based on a \u201chandshake, oral\u201d agreement. Plaintiff stated, \u201cI had bought some equipment prior to then, and we always done it on a handshake agreement, cash basis. That\u2019s the way it was.\u201d Defendants agreed to provide insurance coverage for the barns in 1988. On 20 October 1988, plaintiff paid the $2,000.00 rent owed for the barns and the $992.64 owed to Patricia Hart (Mrs. Hart) for the tobacco rent.\nPlaintiff began negotiating with defendants several days later about purchasing the barns. Plaintiff offered to pay $20,000.00 for the five barns in annual installments of $5,000.00 over a four year period, but did not offer any interest payments. The offer was made in Mrs. Hart\u2019s front yard with only defendants and plaintiff present. Defendants accepted the offer, and both parties shook hands. Plaintiff already had possession of the barns under the rental agreement. Plaintiff did not remove the barns from defendants\u2019 land because he agreed to farm their land in 1989 with tobacco he rented from defendants.\nOn 3 January 1989, plaintiff applied for a loan with Production Credit Association in order to pay for the barns. He informed Lowell Thomas Hart (Mr. Hart) that he would pay for all the barns if the loan came through. Mr. Hart responded that it \u201cwould be fine with us.\u201d On the financial statement portion of the application, he listed the barns, but his loan was denied. Plaintiff and Mr. Hart then reconfirmed that plaintiff was to pay four yearly installments of $5,000.00 for the barns. Because he was unsuccessful in obtaining insurance coverage for the barns, defendants agreed to provide insurance for the five barns for 1989 if plaintiff would reimburse them for the cost. On 20 October 1989, plaintiff promptly reimbursed defendants in full for the insurance coverage. Plaintiff testified that \u201c[ajfter I bought the barns was the only time I agreed to pay insurance\u201d and when he rented the barns in 1988, Mrs. Hart \u201cwas supposed to pay\u201d the insurance.\nDuring the 1989 tobacco farming season, plaintiff decided to sell the barns and placed a \u201cfor sale\u201d ad which expired 23 October 1989 under farm equipment saying \u201cfive roanoke box barns, gas, [plaintiffs] phone number\u201d in The News and Observer. The ad ran two lines for four days and resulted in several calls, including contact with Ashley P. Mohorn (Mr. Mohorn), Ronald E. Stainback (Mr. Stainback), and Lawrence Elliot (Mr. Elliot). Plaintiff received a $500.00 check dated 22 October 1989 as a down payment from Mr. Mohorn for two of the barns after quoting a price of $8,000.00 each. Mr. Stainback met with plaintiff, informed him that he would take two barns, and Mr. Elliot would take one. Mr. Stainback wrote plaintiff a check for $1,000.00 dated 25 October 1989, representing a deposit on the three barns. .\nMrs. Hart called plaintiff in the fall of 1989 and asked if he could \u201cstraighten up with her,\u201d and he \u201ctold her it would be in the next two or three days\u201d and that he was going to sell the barns. She responded that would \u201cbe fine with her.\u201d On the morning of 22 or 23 October 1989, plaintiff delivered a check in person to her for the first $5,000.00 due defendants. The payment was in the form of plaintiff\u2019s personal check number 1468, dated 23 October 1989, payable to Patricia Hart, signed by plaintiff, and with written words on the \u201cfor\u201d line indicating the check was for payment for the five barns. When plaintiff gave her the check, she asked him if he wanted a receipt, but he said \u201cno, the check would be the receipt.\u201d The next night after plaintiff delivered the check, she called him and told him \u201cshe didn\u2019t want to sell [him] the barns; she\u2019d already sold them\u201d to somebody else. Plaintiff received a letter, postmarked 26 October 1989, with the check in it. \u201cShe had torn . . . [the check] so bad you couldn\u2019t hardly put it back together,\u201d and \u201chad tore off [plaintiff\u2019s] name \u2014 tore off her name, the \u2018for\u2019 line, and the date.\u201d Plaintiff was able to piece the check back together to see his signature and the five thousand dollars. He later discovered that defendants sold the five barns to \u201cthe same guys\u201d plaintiff had agreed to sell them to.\nRandy Baker (Baker) testified that plaintiff told him he had bought the barns and had him repair boxes on the barns. Plaintiff paid Baker for this work. J.R. Fowler, Jr. testified that plaintiff told him he had bought the five barns in 1989, was going to pay five thousand dollars a year until they were paid for, was going to sell them, and had run an ad in the paper. Jack Stone (Stone), an auctioneer for the State of North Carolina, testified that \u201c[plaintiff] approached me and said that he had some bulk barns,\u201d \u201csaid that he had purchased the barns,\u201d and \u201casked if [Stone] could sell them.\u201d Stone received a $41,000.00 check for the five barns and held it in escrow until he could inform plaintiff; however, plaintiff told Stone \u201che thought he already had them sold.\u201d After Stone informed plaintiff to let him know if he had already sold the barns, \u201c[plaintiff] calls back and said that the lady had backed out on him and he couldn\u2019t sell the barns to nobody \u2018til he got this straight.\u201d At the close of plaintiff\u2019s evidence, defendants moved for a directed verdict which was denied.\nDefendants presented evidence tending to show that \u201c[plaintiff] agreed to pay [Mr. Hart] twenty thousand dollars for the five barns, and he agreed to pay it over a four year period of time\u201d; however, plaintiff later called Mr. Hart and wished to make a new arrangement in that plaintiff would secure a loan and pay for the barns all at one time. When the loan was not approved, plaintiff contacted Mr. Hart and \u201cwanted to know if he could continue the rental agreement that he had had the previous year.\u201d When Mr. Hart\u2019s wife told him that plaintiff \u201chad come over and brought the rent check, and left the five thousand dollars as an enticement to buy the barns, [he] told her that it just wasn\u2019t sufficient considering the fact that there had been a tremendous acreage increase in the tobacco poundage.\u201d He instructed Mrs. Hart to call plaintiff and \u201ctell him we weren\u2019t interested.\u201d His wife tore up the check, put it in an envelope, and mailed it to plaintiff. At the close of all the evidence, defendants moved for a directed verdict which was denied.\nThe jury answered the questions submitted to them as follows:\nWAS THERE A CONTRACT BETWEEN THE PLAINTIFF, HOMER BUFFALOE, AND THE DEFENDANTS, LOWELL THOMAS HART AND PATRICIA HART?\nANSWER: YES\nIF SO, DID HOMER BUFF ALOE ACCEPT THE TOBACCO BARNS UNDER THE TERMS AND CONDITIONS OF THE CONTRACT?\nANSWER: YES\nIF THERE WAS A CONTRACT, DID PATRICIA HART AND LOWELL THOMAS HART ACCEPT A PAYMENT FOR THE TOBACCO BARNS UNDER THE TERMS AND CONDITIONS OF THE CONTRACT?\nANSWER: YES\nIF THERE WAS A CONTRACT, DID LOWELL THOMAS HART AND PATRICIA HART BREACH THIS CONTRACT?\nANSWER: YES\nWAS THERE A RENTAL CONTRACT FOR THE TOBACCO BARNS FOR THE YEAR 1989 BETWEEN THE PLAINTIFF, HOMER BUFFALOE, AND THE DEFEND-. ANTS, LOWELL THOMAS HART AND PATRICIA HART?\nANSWER: NO_\nThe jury awarded plaintiff damages of $21,000.00. Defendants filed a motion for judgment notwithstanding the verdict which was denied.\nThe issues presented are whether (I) a personal check signed by plaintiff, describing the property involved and containing an amount representing partial payment is sufficient to constitute a writing under the statute of frauds; and (II) there is substantial relevant evidence that plaintiff \u201caccepted\u201d the barns and defendants \u201caccepted\u201d plaintiff\u2019s check, taking the contract out of the statute of frauds.\nBecause the barns, the subject of this dispute, are \u201cgoods\u201d within the meaning of the Uniform Commercial Code, N.C.G.S. \u00a7 25-2-105 (1986), and because the price for the barns is at least $500.00, the provisions of N.C. Gen. Stat. \u00a7 25-2-201 apply. The relevant provisions of this section are:\n(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500.00) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.\n(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable\n(c) with respect to goods for which payment has been made and accepted or which have been received and accepted (G.S. 25-2-606).\nN.C.G.S. \u00a7 25-2-201(1), (3)(c) (1986).\nI\nDefendants argue in their brief that the check delivered by plaintiff to Mrs. Hart fails to meet the requirements of N.C. Gen. Stat. \u00a7 25-2-201(1), commonly referred to as a statute of frauds, because the check \u201cwas not negotiated or endorsed by the Defendants and therefore the signature of the Defendants did not appear on the check.\u201d A check may constitute a writing sufficient to satisfy the requirements of Section 25-2-201(1) provided it (1) contains a writing sufficient to indicate a contract of sale between the parties; (2) is signed by the party or his authorized agent against whom enforcement is sought; and (3) states a quantity. See N.C.G.S. \u00a7 25-2-201 official cmt.; Harper v. Battle, 180 N.C. 375, 376, 104 S.E. 658, 659 (1920) (check collected by defendant with her written endorsement thereon, in which property is described as \u201cWatts Street House\u201d is sufficient writing within statute of frauds); Burriss v. Starr, 165 N.C. 657, 661, 81 S.E. 929, 931 (1914) (note drawn up by defendant, signed by plaintiff, not sufficient to satisfy statute of frauds because it did not obligate defendant to perform); Arthur Linton Corbin, Corbin on Contracts \u00a7 508, at 734 (1950).\nThe only writing in this case is a personal check which, although specifying the quantity of \u201cfive barns\u201d on the \u201cfor\u201d line, addressed to Patricia Hart, signed by plaintiff, and containing an amount of $5,000.00, is not sufficient to satisfy Section 25-2-201. Defendants, the parties \u201cagainst whom enforcement is sought,\u201d did not endorse the check, and therefore, their handwriting does not appear anywhere on the check. In fact, the name of defendant, Mr. Hart, is totally absent from the check. Therefore, because the requirement of Section 25-2-201(1) that the writing be \u201csigned by the party against whom enforcement is sought or by his authorized agent or broker\u201d is absent from the check, the alleged oral contract between plaintiff and defendants is unenforceable under that section. See Manyon v. Graser, 411 N.Y.S.2d 746 (1978) (check for $100 on which was stated \u201cdeposit on purchase of nine-foot strip\u201d which was not endorsed and letter stating \u201cnot feasible to sell property\u201d were not sufficient memoranda to take oral agreement to sell land out of statute of frauds).\nII\nDefendants further argue that the part performance exception in Section 25-2-201(3)(c) does not apply because \u201cthere was no overt action by the plaintiff, purported buyer, in fact no change from the rental period and therefore no basis for a finding of part performance,\u201d \u201c[t]here is no overt action of the Defendants in giving up possession of the tobacco barns,\u201d and \u201cthe delivery of the check by the Plaintiff to the Defendant, Patricia Hart, did not constitute partial payment of the contract because the check was never accepted legally by the Defendants.\u201d We disagree.\nTo qualify under Section 25-2-201(3)(c), the seller must deliver the goods and have them accepted by the buyer. \u201cAcceptance must be voluntary and unconditional\u201d and may \u201cbe inferred from the buyer\u2019s conduct in taking physical possession of the goods or some part of them.\u201d Howse v. Crumb, 352 P.2d 285, 288 (Colo. 1960). The official comment to Section 25-2-201 explains that for the buyer, he is required to deliver \u201csomething . . . that is accepted by the seller as such performance. Thus, part payment may be made by money or check, accepted by the seller.\u201d N.C.G.S. \u00a7 25-2-201 official cmt. Under this standard, Section 25-2-201(3)(c) presents questions of fact, which are questions for the jury, on the issue of acceptance. See Sass v. Thomas, 90 N.C. App. 719, 724, 370 S.E.2d 73, 76 (1988); Coffman v. Fleming, 226 S.W. 67 (Mo. App. 1920), aff\u2019d, 256 S.W. 731 (Mo. 1923) (question of whether plaintiff accepted check as part payment one of fact to be determined by jury).\nIn this case, the evidence, in the light most favorable to plaintiff, establishes that plaintiff told several people about purchasing the barns, reimbursed defendants for insurance on the barns, paid for improvements, took possession, enlisted the aid of an auctioneer and the paper to sell the barns, and received deposits from three buyers on the barns. The evidence, in the light most favorable to plaintiff, also establishes that plaintiff delivered a check for $5,000.00 on 22 October 1989 to defendants, and the check was not returned to plaintiff until 26 October 1989. Under the standards for deciding motions for directed verdict and judgment notwithstanding the verdict, Guyther v. Nationwide Mut. Fire Ins. Co., 109 N.C. App. 506, 513-14, 428 S.E.2d 238, 242 (1993), this evidence represents substantial relevant evidence that a reasonable mind might accept as adequate to support the conclusions reached by the jury that there was a \u201ccontract between the plaintiff, Homer Buffaloe, and the defendants,\u201d plaintiff \u201caccepted] the tobacco barns under the terms and conditions of the contract,\u201d and defendants \u201caccepted] a payment for the tobacco barns under the terms and conditions of the contract.\u201d See Kaufman v. Solomon, 524 F.2d 501 (3d Cir. 1975) (whether possession by seller of check from buyer for 30 days is \u201cacceptance\u201d poses issue for resolution by fact finder); Fournier v. Burhy, 148 A.2d 362 (Vt. 1959) (enforceable contract where plaintiff delivered check to defendant on 21 July 1957 and defendant returned it unendorsed by letter postmarked 6 August 1957); Maryatt v. Hubbard, 205 P.2d 623 (Wash. 1949) (enforceable contract where plaintiff delivered check to defendant on 23 December 1946 and defendant marked through her endorsement on check and returned it to plaintiff on 17 January 1947); Miller v. Wooters, 476 N.E.2d 11 (Ill. App. 1985) (oral contract within exception to statute of frauds where buyer gave check to seller in payment for truck even though buyer stopped payment on check the next day). Therefore, the trial court did not err in denying defendants\u2019 motions for directed verdict or motion for judgment notwithstanding the verdict.\nNo error.\nJudges COZORT and ORR concur", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Davis, Sturges & Tomlinson, by Charles M. Davis, for plaintiff - appellee.", "Norman & Gardner, by Larry E. Norman, for defendant-appellants." ], "corrections": "", "head_matter": "HOMER BUFFALOE v. PATRICIA HART and LOWELL THOMAS HART\nNo. 939SC430\n(Filed 15 March 1994)\n1. Sales \u00a7 4 (NCI4th)\u2014 oral contract \u2014check without defendant\u2019s signature \u2014contract unenforceable\nBecause the requirement of N.C.G.S. \u00a7 25-2-201(1) that the writing be signed by the party against whom enforcement is sought or by his authorized agent or broker was absent from a check written by plaintiff to defendant as partial payment for bulk tobacco barns, the alleged oral contract between plaintiff and defendants was unenforceable under that statute.\nAm Jur 2d, Sales \u00a7\u00a7 180 et seq.\n2. Sales \u00a7 54 (NCI4th) \u2014 purchase of tobacco barns \u2014 sufficiency of evidence of existence of contract\nIn an action for breach of contract, evidence that plaintiff told several people about purchasing tobacco barns from defendants, reimbursed defendants for insurance on the barns, paid for improvements, took possession, enlisted the aid of an auctioneer and the newspaper to sell the barns, received deposits from three buyers, and delivered a $5,000 partial payment check to defendants which was not returned for four days was sufficient to support the jury\u2019s conclusion that there was a contract between the parties, that plaintiff accepted the tobacco barns under the terms and conditions of the contract and that defendants accepted a payment for the barns under the terms and conditions of the contract. N.C.G.S. \u00a7 25-2-201(3).\nAm Jur 2d, Sales \u00a7\u00a7 623 et seq.\nAppeal by defendants from judgments entered 1 October 1992 and 15 December 1992 in Franklin County Superior Court by Judge Henry W. Hight, Jr. Heard in the Court of Appeals 4 February 1994.\nDavis, Sturges & Tomlinson, by Charles M. Davis, for plaintiff - appellee.\nNorman & Gardner, by Larry E. Norman, for defendant-appellants." }, "file_name": "0052-01", "first_page_order": 80, "last_page_order": 88 }