Considering the facts, as above stated, and in view of the pleadings filed herein, we think the judgment of nonsuit was erroneously entered. The statute of frauds is not pleaded, and there is no denial of the contract; on the other hand, it is expressly admitted. Section (C) of the further answer reads: "That the defendants at all times stood ready, able, and willing to pay to the plaintiffs the amount due under the option at the time the same came due, deducting for the deficiency in acreage above set out, and now offer to accept and receive the land and pay for same, less the sum of $30 per acre for the 52 acres, which represent the actual deficiency in the acreage as aforesaid."
Under authority of Henry v. Hilliard, 155 N.C. 372, and cases there cited, the present judgment, which forms the basis of plaintiffs' appeal, must be set aside and the cause remanded for further proceedings. See, also, Herndon v. R. R., 161 N.C. 650.
Reversed. *Page 79 Cited: McCall v. Institute, 189 N.C. 782; Price v. Askins, 212 N.C. 587;Walker v. Walker, 231 N.C. 56; Rochlin v. Construction Co., 234 N.C. 445;Weant v. McCanless, 235 N.C. 386.
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