Alfred S. NUGENT, Jr. and Regina M. Nugent
v.
Wallace BECKHAM and Ann L. Beckham.
No. 771SC812.
Court of Appeals of North Carolina.
August 15, 1978.*544 Leroy, Wells, Shaw, Hornthal, Riley & Shearin, P. A., by Norman W. Shearin, Jr., and Roy A. Archbell, Jr., Kitty Hawk, for plaintiffs-appellees.
Aldridge & Seawell by Christopher L. Seawell and Daniel Duane Khoury, Manteo, for defendants-appellants.
MITCHELL, Judge.
The defendants first assign as error the granting of the plaintiffs' motion for summary judgment as to specific performance, abatement of the purchase price and an accounting. In support of this assignment, the defendants contend that there was an issue of material fact as to whether the plaintiffs were entitled to specific performance. The defendants contend that the affidavit of the defendant, Wallace L. Beckham, should have been accepted as evidence that the defendants tendered to the plaintiffs a deed to the property pursuant to the contract and at the time set for closing, and that the plaintiffs rejected the deed and are not, therefore, entitled to specific performance. We do not agree.
At no point does the affidavit in question show affirmatively that it was based upon the personal knowledge of the affiant or that he was otherwise competent to testify to the matters stated therein. Absent such a showing, the trial court could not, consistent with the requirements of G.S. 1A-1, Rule 56(e), consider the affidavit upon the plaintiffs' motion for summary judgment. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The trial court was, however, free to consider the admissible affidavit of the former counsel for the plaintiffs tending to show that neither of the defendants were present at the time of the plaintiffs' tender of the purchase price, and that the plaintiffs' tender was made to counsel for the defendants out of the defendants' presence. This assignment of error is overruled.
The defendants also contend that a genuine issue of material fact was presented as to whether the house in question was located in violation of certain ordinances and restrictive covenants. They therefore contend that Judge Collier erred in determining that no issue of material fact was presented and that the house was in fact so located. We have thoroughly reviewed the pleadings, including the defendants' original and amended answers, together with the interrogatories and exhibits filed by the parties. We find no indication therein that a genuine issue existed regarding the location of the house in violation of the ordinances and restrictive covenants. That *545 part of the order of Judge Collier granting summary judgment for the plaintiffs as to the existence of a contract and its breach was, therefore, proper.
The defendants next contend that Judge Collier erred in granting specific performance, abatement and an accounting, after determining that no issue of fact existed as to breach of contract. In support of this contention the defendants note that the plaintiffs did not specifically pray for an abatement and accounting in their complaint.
An order for specific performance of a contract to sell real property, together with an abatement of the purchase price, is proper where the title proves in some way defective or the estate differs from that which the owner agreed to convey. Goldstein v. Trust Co., 241 N.C. 583, 86 S.E.2d 84 (1955); 71 Am.Jur.2d, Specific Performance, § 129, pp. 165-66. Here, the plaintiffs' complaint set forth a simple and unambiguous statement of the essential facts setting forth a claim for relief for specific performance, an abatement and an accounting, as they alleged among other things that the defendants were possessed of a title which was defective in some particular or were possessed of an estate different from that which they had agreed to convey.
Nevertheless, the defendants contend that G.S. 1A-1, Rule 8, required the plaintiffs specifically request an abatement and accounting in addition to specific performance. We do not agree. G.S. 1A-1, Rule 54(c) contemplates judgments granting the relief to which the party in whose favor they are rendered is entitled without regard to whether such relief has been demanded in that party's pleadings. Additionally, to give Rule 8 the strict construction urged by the defendants would frustrate the intent of the rule, as expressed in section (f) thereof, that all pleadings be construed so as to do substantial justice. Here, the plaintiffs specifically demanded judgment in the form of specific performance of the contract and set forth a plain statement of a claim for relief for specific performance, abatement and an accounting. The directive contained in Rule 8(a)(2) that a party demand the relief to which he deems himself entitled requires no more, and this assignment is overruled.
The defendants assign as error the action of the trial court in permitting the jury to consider evidence relating to the cost of moving the house in question as evidence concerning the proper amount of any abatement of the purchase price. We find that evidence as to the cost involved in bringing the property into compliance with local ordinances and restrictive covenants was one factor which could be properly considered by the jury in its efforts to determine the difference between the fair market value as contemplated by the parties upon entering their contract and the fair market value of the property the defendants were actually able to convey.
The defendants have also contended that other evidence admitted by the trial court and relating to the issue of fair market value was improper. Without restating each of those contentions separately, we have reviewed them and find each without merit. The evidence admitted by the trial court was proper and did not constitute error.
Finally, the defendants contend that the trial court erred in declining in its discretion to award them interest on the purchase price of the property, as the plaintiffs had the use of the purchase price until judgment requiring specific performance. It is true that the general rule is that the buyer is entitled to rents and profits during the period in which the seller has refused to convey and wrongfully kept the buyer out of possession, while the seller is entitled to interest on the purchase price. Harper v. Battle, 180 N.C. 375, 104 S.E. 658 (1920); Stern v. Benbow, 151 N.C. 460, 66 S.E. 445 (1909). We do not think, however, that the seller's right to interest on the purchase price in such cases is absolute as a matter of law. See 81A C.J.S., Specific Performance, § 198, pp. 169-70.
Here, the interest sought on the purchase price would exceed the amount awarded the *546 plaintiffs by the jury and would result in a net gain to the defendants in the form of a reward for their failure or refusal to comply with the terms of their contract. We do not feel the general rule is so inflexible as to require a court of equity to reach such results. Rather, we find the denial of interest to all parties in the discretion of the trial court to have been proper in this case.
The defendants having received a fair trial free from prejudicial error, we find
No error.
VAUGHN and MARTIN, JJ., concur.