{ "id": 8553338, "name": "DAVID A. WALKER and wife, PATSY B. WALKER v. EDWARD WEAVER, d/b/a WEAVER REALTY COMPANY, BEN F. MUSSER and wife, HATTIE L. MUSSER", "name_abbreviation": "Walker v. Weaver", "decision_date": "1974-11-20", "docket_number": "No. 745DC118", "first_page": "654", "last_page": "657", "citations": [ { "type": "official", "cite": "23 N.C. App. 654" } ], "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": "31 A.L.R. 2d 8", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "100 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "240" } ], "opinion_index": 0 }, { "cite": "247 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625203 ], "year": 1957, "pin_cites": [ { "page": "70" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0067-01" ] } ], "analysis": { "cardinality": 472, "char_count": 8737, "ocr_confidence": 0.591, "pagerank": { "raw": 1.4155445678921878e-07, "percentile": 0.6478777334122569 }, "sha256": "4483cb6522d8b69807c0e41ad6138a25f68fcc351f9066394e3c9a9d09551b9e", "simhash": "1:99bf46caf11c0f88", "word_count": 1484 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Baley concur." ], "parties": [ "DAVID A. WALKER and wife, PATSY B. WALKER v. EDWARD WEAVER, d/b/a WEAVER REALTY COMPANY, BEN F. MUSSER and wife, HATTIE L. MUSSER" ], "opinions": [ { "text": "PARKER, Judge.\n\u201cIt is settled law that where a party agrees to purchase real estate and pays a part of the consideration therefor and then refuses or becomes unable to comply with the terms of his contract, he is not entitled to recover the amount theretofore paid pursuant to its terms.\u201d Scott v. Foppe, 247 N.C. 67, 70, 100 S.E. 2d 238, 240 (1957). Such is the rule recognized in this and in a majority of American jurisdictions. Annot., 31 A.L.R. 2d 8. As is noted in that Annotation, p. 19, because application of this rule may at times produce a harsh result, a minority of jurisdictions refuses to permit the vendor to retain money paid on the contract in excess of damage sustained from the breach. We need not, however, now consider the merits of the minority view, since application of the \u201csettled law\u201d to the present litigation produces no harsh result.\nApplying the settled law, the judgment appealed from should be affirmed. Appellants\u2019 assignments of error to certain of the court\u2019s findings of fact and conclusions of law either call into question certain minor discrepancies as to dates, which we find immaterial, or are predicated upon appellants\u2019 contention that time was of the essence of the contract and, the loan proceeds being unavailable within the time set for closing, plaintiffs were excused from all further obligation to perform. We do not think that time was of the essence of the contract. The written agreement was apparently prepared in the office of the real estate agency and was somewhat ineptly drawn. The only reference to time of closing was the statement that the contract was \u201cto be definitely closed within a period of 30 days,\u201d a statement which in our opinion falls short of indicating any intention of the contracting parties that all rights and obligations were to terminate if, through no fault of either vendors or vendees, the sale could not be closed exactly within the time period prescribed. Nothing in plaintiffs\u2019 evidence indicates that when the contract was drawn the time of closing was of major concern. Plaintiff David A. Walker testified, \u201cI did not have anything to do with setting the 30 days, it was typed in.\u201d\nWe find the court\u2019s essential findings of fact to be supported by competent evidence and that these in turn support its conclusion of law that plaintiffs\u2019 failure to close amounted to a breach of contract. This conclusion of law was in itself sufficient to support the judgment rendered. Holding as we do, that time was not of the essence of the contract, the court\u2019s additional conclusion that \u201cthe conduct of the parties amounted to a modification of the contract to extend closing for a reasonable period of time,\u201d was merely surplusage, and we need not determine whether it was correct.\nThe judgment appealed from is\nAffirmed.\nChief Judge Brock and Judge Baley concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Poisson, Barnhill, Butler & Martin by Algernon L. Butler, Jr., for 'plaintiff appellants.", "James L. Nelson and James D. Smith for defendant ap-pellees." ], "corrections": "", "head_matter": "DAVID A. WALKER and wife, PATSY B. WALKER v. EDWARD WEAVER, d/b/a WEAVER REALTY COMPANY, BEN F. MUSSER and wife, HATTIE L. MUSSER\nNo. 745DC118\n(Filed 20 November 1974)\n1. Vendor and Purchaser \u00a7 8\u2014 part payment \u2014 failure to perform contract\u2014 no refund\nWhere a party agrees to purchase real estate and pays a part of the consideration therefor and then refuses or becomes unable to comply with the terms of his contract, he is not entitled to recover the amount theretofore paid pursuant to its terms; therefore, the trial court properly dismissed plaintiffs\u2019 action to recover $500 paid on the purchase price of a house where plaintiffs agreed to purchase subject to their getting financing, plaintiffs\u2019 loan application was approved subject only to a title check, but after the date plaintiffs learned of the loan approval and before closing, plaintiffs decided not to purchase.\n2. Vendor and Purchaser \u00a7 2 \u2014 closing within thirty days \u2014 \u2019time not of essence\nTime was not of the essence in a contract to purchase real estate where the contract provided that it was \u201cto be definitely closed within a period of 80 days,\u201d since that statement did not indicate any intention of the contracting parties that all rights and obligations were to terminate if, through no fault of either vendors or vendees, the sale could not be closed exactly within the time period prescribed.\nAppeal by plaintiffs from Barefoot, District Judge, 20 August 1973 Session of District Court held in New Hanover County.\nCivil action to recover $500.00 down payment made under a contract to purchase real property. By written agreement dated 14 June 1972 plaintiffs agreed to purchase and defendants Musser and wife agreed to sell a house and lot in Wilmington, N. C., for the price of $22,500.00, of which $2,500.00 was to be cash and \u201c[b] alance together with interest at 8% per annum payable in 24 years.\u201d The agreement was also signed by Weaver Realty Company, Agent, and contained a recital that the agent acknowledged receipt of $500.00 \u201cas part payment on the purchase price.\u201d No further mention of this $500.00 payment was made in the agreement. The agreement provided it was \u201csubject to the buyers getting financing,\u201d and that the contract of sale was \u201cto be definitely closed within a period of - 30 - days from date hereof.\u201d\nPlaintiffs commenced this action on 20 December 1972, alleging that plaintiffs, \u201cthrough no fault or negligence of their own, were unable to obtain financing in accordance with the terms of the contract as herein alleged on or before the definite date set for closing therein by the defendants and in accordance with the terms of said contract it became null and void and of no binding effect on the plaintiffs upon such occurrence.\u201d On 29 December 1972 defendant Edward Weaver, doing business as Weaver Realty Company, paid the $500.00 into the office of the clerk of superior court to be held by the clerk pending the outcome of this action, and subsequently the court entered an order dismissing this action as to Weaver Realty Company. No appeal was taken from that order. Defendants Musser filed answer in which they denied the above-quoted allegation in the complaint, and alleged that \u201cthe plaintiffs breached their agreement with these defendants and are not entitled to a refund of the $500.00 earnest money,\u201d but that on the contrary defendants were entitled to recover the same from the clerk of superior court.\nBy agreement, the case was heard by the district judge without a jury. Plaintiff David A. Walker testified that on 15 June 1972, the day following the signing of the contract, plaintiffs applied for a loan to Cooperative Savings & Loan Association, that he was subsequently informed that the loan applied for was approved, but that when he contacted the Savings & Loan Association on 13 July to find out what time closing would be, he was informed that the loan papers had been misplaced, that the attorneys had not yet examined the title, and that closing could not take place until the latter part of the following week. Plaintiffs also presented the testimony of the lending officer of the Savings & Loan Association, who testified that plaintiffs\u2019 loan application had been approved subject only to a title check, that on 14 July the money was available from the Savings & Loan Association but they could not close the loan because they did not know the condition of the title, that the papers were not sent to the title attorneys until 14 July, and that he could not explain why the papers had not been sent to the attorneys before that date.\nOn cross-examination, plaintiff David A. Walker testified:\n\u201cIn my conversation with Mrs. Brown [of Weaver Realty Company] on July 14, I did not tell her that we were not going to close when Cooperative Savings & Loan had that title prepared. The first time I told anybody \u2018No\u2019 was the following Monday, July 17. I first called Weaver Realty Company but Mr. Weaver was not in. During the weekend, my wife and I had gone by the house and we just decided that maybe it wasn\u2019t as good an idea as we first thought and we decided against buying the house during the weekend. It is true that that\u2019s when it first came to my mind, after the time when the Savings & Loan said they had approved my loan but they had to get the title complete. It is correct that prior to this time I had not shown any disappointment in the home.\u201d\nAt conclusion of plaintiffs\u2019 evidence, the court allowed defendants\u2019 motion for dismissal of plaintiffs\u2019 action made under Rule 41(b) and entered judgment making detailed findings of fact, conclusions of law, and directing that the $500.00 be paid by the clerk of superior court to defendants Musser. From this judgment, plaintiffs appealed.\nPoisson, Barnhill, Butler & Martin by Algernon L. Butler, Jr., for 'plaintiff appellants.\nJames L. Nelson and James D. Smith for defendant ap-pellees." }, "file_name": "0654-01", "first_page_order": 682, "last_page_order": 685 }