Bechtel v. Weaver 204 N.C. 781

JOHN A. BECHTEL v. D. J. WEAVER et al.

(Filed 22 March, 1933.)

Appeal and Error J c—

Where there is no request for findings of fact the judgment of the lower court will be upheld, it being presumed that the court found the necessary facts and that the judgment is correct, the burden of showing error being on appellant.

Civil actioN, before Clement, J., at October Term, 1932, of IIaywoou.

The plaintiff alleged that he had purchased certain lands from one Thomas Byrd, executing a mortgage or deed of trust to the defendant, Bankers Trust and Title Insurance Company, trustee, to secure the balance of purchase money amounting to $200,000, and that thereafter the General Assembly of North Carolina had enacted the Smoky Mountain Park bill and officials of said Park Commission had stated that said land would be included within the park area. Thereupon plaintiff approached Byrd and after some negotiation it was agreed by Byrd to *782extend tbe time of payment of said notes in order to enable plaintiff to make an advantageous sale of said land. Byrd died in September, 1929, and tbe defendants, D. J. Weaver and Kittie B. Byrd, were appointed administrators and trustees of bis estate. Plaintiff further alleged tbat in violation of bis oral agreement with Byrd, deceased, tbe defendants proceeded to sell tbe land to tbe Park Commission for tbe sum of $5.50 per acre and delivered a deed therefor, and tbat by reason of such breach of contract damage bad resulted in tbe sum of $300,000.

Tbe defendant, in answer to tbe complaint, pleaded as a bar or estoppel former actions instituted by tbe plaintiff upon tbe same alleged cause of action. In this connection reference is made to 202 N. C., 855-56, 164 S. E., 338. Tbe trial judge decreed as follows: “After bearing argument of counsel tbe court doth consider and adjudge tbat tbe action as above entitled be dismissed upon tbe grounds set forth in tbe pleadings. It is further ordered and decreed by tbe court, upon tbe pleadings, tbat tbe plaintiff, bis agents, servants, attorneys, or any one acting under bis authority, shall be, and they hereby are, restrained and enjoined from prosecuting against tbe defendants, or any of them, any further action upon tbe grounds set forth in tbe complaint herein.”

From tbe foregoing judgment tbe plaintiff appealed.

Jos. W. Little and Geo. H. Ward for plaintiff.

Heazel, Shuford & Hartshorn for defendant.