{ "id": 8565294, "name": "NOEL C. MacKAY v. CALLIE C. McINTOSH", "name_abbreviation": "MacKay v. McIntosh", "decision_date": "1967-04-12", "docket_number": "", "first_page": "69", "last_page": "74", "citations": [ { "type": "official", "cite": "270 N.C. 69" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "108 A. 2d 865", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "32 N.J. Super. 585", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 394111 ], "opinion_index": 0, "case_paths": [ "/nj-super/32/0585-01" ] }, { "cite": "152 S.E. 2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "94" } ], "opinion_index": 0 }, { "cite": "269 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562168 ], "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0148-01" ] }, { "cite": "123 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "256 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570733 ], "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0034-01" ] }, { "cite": "129 S.E. 2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562182 ], "opinion_index": 0, "case_paths": [ "/nc/258/0653-01" ] }, { "cite": "108 S.E. 2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618848 ], "opinion_index": 0, "case_paths": [ "/nc/250/0001-01" ] } ], "analysis": { "cardinality": 647, "char_count": 13954, "ocr_confidence": 0.574, "pagerank": { "raw": 6.731898037233034e-07, "percentile": 0.9631441833095289 }, "sha256": "26c739b41a84a7c9fd373beb58ca20821d3dba63eef94117c3301aa9c17df102", "simhash": "1:a39fa6678bc7b4a7", "word_count": 2326 }, "last_updated": "2023-07-14T21:31:56.885447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NOEL C. MacKAY v. CALLIE C. McINTOSH." ], "opinions": [ { "text": "Bobbitt, J.\nThe only question presented by plaintiff\u2019s exception to the judgment is whether error of law appears on the face of the record proper. 1 Strong, N. C. Index, Appeal and Error \u00a7 21. Since the court's factual findings with reference to mutual mistake support the judgment, this exception is without merit.\nPlaintiff\u2019s remaining exceptions consist of the objections set forth in the appeal entries to the effect that the findings of fact are not supported by the evidence. Upon waiver of jury trial, the court\u2019s findings of fact, if supported by competent evidence, have the force and effect of a verdict. Insurance Co. v. Lambeth, 250 N.C. 1, 108 S.E. 2d 36; Priddy v. Lumber Co., 258 N.C. 653, 129 S.E. 2d 256.\n\u201cAn exception that the evidence is insufficient to support the findings of the trial court, without exception to a particular finding, is . . . broadside and ineffectual.\u201d 1 Strong, N. C. Index, Appeal and Error \u00a7 22. While this deficiency in plaintiff\u2019s exceptions is sufficient ground for dismissal thereof, we have elected to consider whether the evidence is sufficient to support the court\u2019s factual findings.\nAt the trial before Judge Hasty, no objection to the admission of evidence was interposed by plaintiff. Indeed, the adverse examination of defendant, whose testimony as to Mrs. Cooper\u2019s representations and her reliance thereon strongly supports the court\u2019s factual findings, was offered in evidence by plaintiff.\nThe writing (Exhibit A) consists of an offer addressed by defendant to Florida Realty Company \u201cas agent.\u201d A condition thereof is that \u201cthe owners\u201d be able to convey a good and marketable title, and that the property be \u201cfree and clear of all encumbrances except: zoning, restrictive covenants, easements of record and utility rights of way, if any\u201d; etc. The quoted excerpts are printed portions of a form used by Florida Realty Company. The signature of plaintiff appears below that of defendant and after' the word \u201cAccepted.\u201d Plaintiff\u2019s name does not appear in the body of the contract. Appended to said contract is a receipt issued October 7, 1965, signed in the name of Florida Realty Company by Sarah C. Cooper, acknowledging the payment by defendant of the sum of $100.00 as a deposit and part payment on the purchase price of the property. To the left and below Mrs. Cooper\u2019s signature on said receipt these words appear: \u201cBill C. McKeon, Co-operating broker.\u201d\nPlaintiff testified the offer signed by defendant was brought to him by McKeon; that he read it and signed it; that the subject of zoning was not mentioned; that he did not know defendant and had no direct dealings with her; that both Mrs. Cooper and\u2019 McKeon were employees of Florida Realty Company; and that he had signed an agreement to pay each of these real estate agents one thousand dollars as commission for the sale of the property.\nThere is evidence that McKeon drafted the contract (filled in the blanks) and obtained defendant\u2019s signature thereto; that plaintiff knew the property was not zoned for business; that he thought the property was zoned 0-6; that in fact it was zoned R-9MF (multiple family) and was being used for an office building in violation of the applicable zoning restriction; that the building was separated by a parking lot from property zoned for business and being used for business purposes by \u201ca Burger King\u201d; and that the fair market value of the subject property, if it were zoned for business, would be substantially more than its fair market value when zoned R-9MF. (Note: It is stated in the case on appeal that plaintiff later sold the subject property for $14,388.58.)\nThere was ample evidence to support Judge Hastv\u2019s factual findings that defendant\u2019s sole interest in the subject property was for use by her for a retail store and that defendant so advised Mrs. Cooper; that defendant was induced to sign the writing by Mrs. Cooper\u2019s representation that the property was in a zone where use thereof for a retail store was permitted; and that both Mrs. Cooper and defendant acted pursuant to their mistaken belief that this representation was true when in fact it was false.\nUnder \u201cAssignments of Error,\u201d plaintiff contends (1) \u201cthere was nothing to indicate that the real estate agent had any authority beyond the normal restrictive powers of a real estate agent,\u201d and' (2) \u201cthe written contract clearly showed that the zoning was not guaranteed by the seller and was not a condition of the contract.\u201d It is well established that \u201c(a)ssignments of error unsupported by an exception duly taken and preserved will not be considered on appeal.\u201d Hicks v. Russell, 256 N.C. 34, 39, 123 S.E. 2d 214, 218, and cases cited; King v. Snyder, 269 N.C. 148, 151, 152 S.E. 2d 92, 94. Apart from this procedural deficiency, we find no merit in these contentions.\nPlaintiff\u2019s testimony establishes clearly that he had appointed McKeon and Mrs. Cooper as his agents to sell the subject property, and that the negotiations with defendant were conducted on behalf of plaintiff by Mrs. Cooper. Nothing in the offer signed by defendant indicates any restriction upon Mrs. Cooper\u2019s authority as agent for the seller. \u00d1or does plaintiff\u2019s testimony indicate that he attempted to place any restriction upon her authority to act for him.\nAll statements and declarations \u201cmade by the agent within the scope of his employment and with the actual or apparent authority of the principal are binding upon the principal and he is responsible therefor. A principal cannot repudiate statements made by his agent in the course of the employment, and fairly within the line of his real or apparent authority, and he is bound by the agent\u2019s material representations of fact to the same extent as if he had made them himself.\u201d 3 Am. Jur. 2d, Agency \u00a7 264. As to the applicability of this rule to real estate agents, see Restatement (Second) of Agency \u00a7 258, comment b (1958). Whether unauthorized representations made by Mrs. Cooper could be enforced against plaintiff is not presented. In the present factual situation, it would be unconscionable to allow plaintiff to profit by defendant\u2019s reasonable reliance upon the unintentional false representations made by his agent in her negotiations in his behalf with defendant.\nPlaintiff contends an oral agreement in conflict with the writing should be disregarded. This contention is based on a misconception of defendant\u2019s position.\n\u201cThe parol evidence rule presupposes the existence of a legally effective written instrument. It does not in any way preclude a showing of facts which would render the writing inoperative or unenforceable. Thus it may be proved that . . . there was such mistake as to prevent the formation of a contract or make it subject to reformation or rescission.\u201d Stansbury, N. C. Evidence (Second Edition), \u00a7 257. \u201c(P)arol evidence is admissible to show a mutual mistake as to the existence of the subject matter of an agreement which prevents the formation of a contract.\u201d 17 Am. Jur. 2d, Contracts \u00a7 144, p. 492.\nDefendant does not seek to contradict the writing or to enforce a parol agreement. She contends that, since both Mrs. Cooper and defendant negotiated and acted in the honest but mistaken belief the subject property was in fact zoned for business, no contract, either written or oral, resulted; and that, there being no agreement, she is not obligated to purchase property which cannot be used for a retail store.\n\u201cThe formation of a binding contract may be affected by a mistake. Thus, a contract may be avoided on the ground of mutual mistake of fact where the mistake is common to both parties and by reason of it each has done what neither intended. Furthermore, a defense may be asserted when there is a mutual mistake of the parties as to the subject matter, the price, or the terms, going to show the want of a consensus ad idem. Generally speaking, however, in order to affect the binding force of a contract, the mistake must be of an existing or past fact which is material; it must be as to a fact which enters into and forms the basis of the contract, or in other words it must be of the essence of the agreement, the sine qua non, or, as is sometimes said, the efficient cause of the agreement, and must be such that it animates and controls the conduct of the parties.\u201d 17 Am. Jur. 2d, Contracts \u00a7 143.\nIn our opinion, and we so hold, whether the subject property was within the boundaries of an area zoned for business is a factual matter; and, under the evidence, the mutual mistake as to this fact related to the essence of the agreement.\nWe have considered Josefowicz v. Porter, 32 N.J. Super. 585, 108 A. 2d 865, a decision cited and relied upon by plaintiff. The decision is factually distinguishable, and no allegations or evidence as to misrepresentations or mutual mistake were involved.\nThe conclusion reached is that the evidence fully supports Judge Hasty\u2019s findings and judgment. For the reasons stated, the judgment of the court below is affirmed.\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "John E. McDonald, Jr., for plaintiff appellant.", "Hedrick, McKnight & Parham for defendant appellee." ], "corrections": "", "head_matter": "NOEL C. MacKAY v. CALLIE C. McINTOSH.\n(Filed 12 April, 1967.)\n1. Appeal and Error \u00a7 21\u2014\nAn exception to the judgment presents for review only whether error of law appears on the face of the record.\n2. Appeal and Error \u00a7 49\u2014\nWhere the findings of fact by the court, in a trial by the court under agreement of the parties, support the judgment, an exception to the judgment cannot be sustained.\n3. Appeal and Error \u00a7 22\u2014\nAn exception that the findings of fact by the trial court are not supported by evidence, without an exception to any particular finding, is broadside and ineffectual.\n4. Cancellation and Rescission of Instruments \u00a7 4; Brokers and Factors \u00a7 3\u2014 Mutual mistake of purchaser and seller\u2019s broker warrants rescission.\nDefendant\u2019s evidence was to the effect that he signed the contract for the purchase of the property in question in reliance upon the representation of plaintiff's real estate agent that the property was zoned for business purposes, and that both defendant and the agent acted pursuant to their mistaken belief that this representation was true when in fact it was false. HelcL: The evidence supports rescission of the contract for mutual mistake, since it would be unconscionable to allow plaintiff to profit by defendant\u2019s reasonable reliance upon the unintentional false representations made by plaintiff\u2019s agent in her negotiations in his behalf with defendant. Whether the unauthorized representation of the broker could be the basis of an action for damages against plaintiff is not presented.\n5. Evidence \u00a7 27; Contracts \u00a7 26\u2014\nThe parol evidence rule does not preclude parol evidence that the parties entered into the contract because of a mutiual mistake of fact, since such evidence does not seek to contradict the writing or to enforce a parol agreement but only to show the existence of a mutual mistake of fact precluding a meeting of the minds and the formation of a contract.\nAppeal by plaintiff from Hasty, Special Judge, July 11, 1966 Civil Session of Mecklenbueg.\nPlaintiff seeks to compel defendant to purchase property at 3004 Commonwealth Avenue, Charlotte, N. C., consisting of a lot \u201capprox. 65 feet by 205 feet\u201d and the brick building thereon, and to pay therefor as purchase price the sum of $21,600.00 upon the terms set forth in a written contract (Exhibit A) dated October 4, 1965, or, if defendant is unable to comply with her said contract, that plaintiff be awarded damages \u201cfor loss of. profits.\u201d\nAnswering, defendant admitted the execution of said contract; otherwise, she \u25a0 denied plaintiff\u2019s essential allegations. For a further defense, she alleged in substance: Prior to signing said contract, she advised plaintiff\u2019s agent her only reason for purchasing the property was \u201cto use same for her retail business (dress shop) known as Callie\u2019s House of Maternity\u201d; and that plaintiff's agent advised her the property was zoned \u201cfor business purposes\u201d when in fact the use thereof for business purposes was not permitted by the zoning ordinance.\nA stipulation filed in this Court shows the parties waived trial by jury and agreed that the cause, as to both facts and law, be tried by the court.\nPlaintiff\u2019s evidence consists of the adverse examination of defendant, and of the testimony of plaintiff. Defendant\u2019s evidence consists of the testimony of Mrs. Sarah C. Cooper, who, as agent of plaintiff, conducted the negotiations . leading up to defendant\u2019s execution of said contract.\nThe court made findings of fact in substance, except where quoted, as follows: \u201c(I)t was the intention of the plaintiff\u2019s agent to sell land to the defendant which was zoned for business.\u201d It was \u201cthe defendant\u2019s intention to only purchase land zoned for business.\u201d The subject land \u201cwas in fact not zoned for business.\u201d The contract was entered into by defendant as a result of the misrepresentation made by plaintiff\u2019s agent to the effect the property was zoned for business and defendant\u2019s acceptance and reliance upon such representation.\nUpon said findings of fact, the court entered judgment providing that plaintiff recover nothing of defendant; that defendant is discharged from liability to plaintiff on account of matters alleged in the complaint; that the contract between plaintiff and defendant is rescinded; and that defendant recover of the plaintiff her costs.\nThe record shows the judgment is dated July 15, 1966, and was filed November 10, 1966. On November 18, 1966, plaintiff excepted thereto and notice of appeal therefrom was waived. Appeal entries signed and filed on November 21, 1966, set forth that plaintiff \u201cobjects to the findings of fact in the judgment entered in the cause on November 10, 1966, and . . . requests that said findings of fact be stricken on the grounds that they are not supported by the evidence,\u201d and objects \u201c(t)o the signing and entry\u201d of said judgment. .\nJohn E. McDonald, Jr., for plaintiff appellant.\nHedrick, McKnight & Parham for defendant appellee." }, "file_name": "0069-01", "first_page_order": 109, "last_page_order": 114 }