The first exception is groundless, because the evidence proposed and rejected was irrelevant. The defendant's alleged claim did not depend upon the value of the land. Nor was it pertinent and proper to prove that the land was worth more than the price the defendant paid, or agreed to pay, for it, with a view to prove that the plaintiff did not agree to make good any deficiency in the quantity of the land embraced by the deed. In this view, the evidence (355) would only lay the foundation for a possible inference — an argument, a conjecture, adverse to the defendant — it would not legitimately prove a material fact.
The defendant alleged in the answer, substantial ground of defense, though not with such clearness and directness as he might have done. The court could see its nature, scope and purpose; the plaintiff could put it in question; it could be litigated, and the court determine and administer the right as it might appear to be. Upon application of the plaintiff, orex mero motu, the court might have required the defendant to make his allegations more definite.
The defense alleged was, in substance and effect, that the plaintiff contracted to sell to the defendant a tract of land, designated, containing one hundred and eleven acres, for the price specified; that in this connection, and as part of the contract of sale, he agreed, at the time the deed of conveyance was executed by him, that if the tract of land did not contain the number of acres mentioned, he would account to the defendant for the deficiency — "make it good to the defendant in the settlement of the purchase-money" — the deficiency, if any, to be *Page 289 ascertained by a proper survey. The amendment to the answer was scarcely necessary. It only served to make more specific the allegation that the agreement as to any deficiency in the quantity of land relied upon as a defense was distinctly made and understood by the parties at the time the deed was executed, and before the purchase-money was paid. Its purpose was to help the allegation that the agreement relied on was a part of the contract of sale, not set forth in the deed, nor put in writing. That contract, in its scope and purpose, had reference to and embraced the land — the quantity, the price paid for it, the deed of conveyance, the agreement as to any deficiency in quantity, the payment at once of part of the purchase-money, and the note for the balance thereof. These things made up its whole, and the defendant alleges the agreement as to the deficiency as a defense. The (356) agreement so, and, as alleged, was supported by the consideration of the contract of sale — that recited in the deed — because it was a constituent part of that contract, and contemplated by it. The defendant clearly did not intend to allege an agreement separate, distinct and apart from the contract of sale of land.
No objection was made to the issues submitted to the jury. They were treated as sufficient to settle the material facts. As we have said, the evidence was very conflicting, but there was evidence tending to prove the defendant's alleged defense, and it was the province of the jury to determine its weight. The court below, in the exercise of a sound discretion, might have set the verdict of the jury aside, if it deemed it against the weight of the evidence, but this Court has no such authority.
The statute (The Code, sec. 1554) did not require the agreement as to the quantity of land embraced by the contract of sale, or by the deed of conveyance, to be in writing. And such agreement may be part of a contract of sale of land not put in writing, because a contract may be partly and in some respects put in writing, and as to other parts and in other respects merely verbal. It would be otherwise, however, if the contract in writing, by its terms or nature, embraced the whole contract. Manning v. Jones, Busb., 368; Sherrill v. Hagan, 892 N.C. 345; Michael v. Foil, 100 N.C. 178;Twidy v. Saunderson, 9 Ired., 5; Braswell v. Pope, 82 N.C. 57;Parker v. Morrill, 98 N.C. 232.
Judgment affirmed.
Cited: Currie v. Hawkins, 118 N.C. 595; Quin v. Sexton, 125 N.C. 447,452; Brown v. Hobbs, 147 N.C. 77; Stern v. Benbow, 151 N.C. 462;Buie v. Kennedy, 164 N.C. 297; Henofer v. Realty Co., 178 N.C. 585;Duffy v. Phipps, 180 N.C. 314; Green v. Harshaw, 187 N.C. 222.
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(357)