Bailey v. Bishop

• Decision Date: 20 April 1910
• Citation: 67 S.E. 968,152 N.C. 383
• Court: North Carolina Supreme Court
• Parties: BAILEY v. BISHOP.

67 S.E. 968

152 N.C. 383

BAILEY

v.BISHOP.

Supreme Court of North Carolina.

April 20, 1910.

1. Frauds, Statute of (§§ 71, 139^*)—Contracts Affecting Realty—Validity.

The statute of frauds applies to contracts concerning land when and to the extent that they are executory, but it does not apply where the transaction has been executed.

[Eid. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 113, 334; Dec. Dig. §§ 71, 139.*]

2. Frauds, Statute of (§ 133*)—Contracts Concerning Land—Performance—Validity.

Where defendant agreed to convey to a city a right of way for a street, including a part through plaintiff's land, and orally promised plaintiff that, if the street was opened, he would pay the cost of paving it, and plaintiff conveyed land for the street to defendant to enable him to convey the right of way to the city, and the right of way was conveyed, and plaintiff was compelled by the city to pave the sidewalk, the right of plaintiff to recover from defendant for the cost of the sidewalk involved only a money demand, not within the statute of frauds.

[Ed. Note.—For other cases, see Frauds, Statute of, Cent. Dig. §§ 293-298; Dec. Dig. § 133.*]

3. Money Paid (§ 1*)—Grounds—Contracts.

Where one agreed to pave a street through the land of another on the latter conveying land for the street, and the latter was required by the city to pave the sidewalk, the latter could sue the former; the agreement establishing a primary liability on the part of the former for the cost thereof.

[Ed. Note.—For other cases, see Money Paid, Cent. Dig. §§ 1-4; Dec. Dig. § 1.*]

4. Money Paid (§ 1*)—Grounds of Recovery.

A plaintiff can recover against a defendant, as for money paid to his use, to the extent that the claim paid by plaintiff should have been paid by defendant; and, where a plaintiff shows that he, by compulsion of law, or to relieve himself from liability, or to save himself from damage, has paid money which defendant ought to have paid, a count for money paid will be supported.

[Ed. Note.—For other cases, see Money Paid, Cent Dig. §§ Dec; Dec. Dig. § 1.*]

Appeal from Superior Court, Guilford County; Ward, Judge.

Action by James M. Bailey against J. C. Bishop. From a judgment for plaintiff, defendant appeals. Affirmed

There was evidence on the part of plaintiff tending to show, in substance, that defendant owned a body of land lying north of the city of Greensboro, or in the northern part of the city, and desired to have an extension of Elm street through his property; that plaintiff owned a lot lying in front of defendant's land, making it necessary for the proposed extension to run through or take a part of plaintiff's lot; that plaintiff, having to be out of the city when the matter was considered, submitted his proposition in writing to the city authorities, to the effect that he would give the right of way to the extent of 8 feet through one side of his lot in consideration of $160, a conveyance of 10 feet by the city in rear of plaintiff's lot, and that the sidewalk and street of the proposed extension should be macadamized and paved along the entire length of plaintiff's lot without any cost to him. Defendant attended the meeting in person, and, the aldermen having declined to extend the street on the terms proposed, defendant, thereupon ignoring plaintiff's proposition, for the sum of $1,500 agreed to deed the city a right of way for the entire length, including the portion through plaintiff's lot. When plaintiff returned to the city, defendant told him that he could not get the street on the terms desired, and that he (defendant) had stipulated for the entire right of way, and to stand between plaintiff and any and all cost, etc. This statement appears in different forms in plaintiff's evidence, thus: "A. He said he would become responsible for the paving and macadamizing so that he could get the street, and says, 'You must help me out some.' Q. Didn't say, 'We will have to assume the paving just like the property owners on the other streets'? A. Said that the city would not agree to do the paving, and he had to agree to do it in, order to get the street. Q. That agreement to pave and macadamize should have been with the city. Mr. Bishop didn't promise to pave your sidewalk? A. All he said was that he had agreed to do the paving on all the street." That plaintiff, in recognition of defendant's agreement, conveyed to defendant the eight feet to enable defendant to comply with his agreement to acquire for the city the entire right of way, etc. That the street was extended, and the city compelled plaintiff, under the terms and provisions of the charter, to pave the sidewalk at a cost of $141, for which sum the present suit was brought. Defendant admitted that he had contracted with the city for the entire right of way, in disregard of the proposition submitted by plaintiff, and had received $1,500 for said right of way, but de-nied that he had made any promise or agreement to save plaintiff harmless, etc. There was other testimony on the issue, but none relevant to the question presented on appeal. Verdict for plaintiff, judgment, and defendant excepted and appealed.

T. J. Murphy, for appellant

Morehead & Sapp, for appellee.

HOKE, J. On exception formally noted defendant objects to the validity of this recovery, chiefly by reason of the statute of frauds, requiring contracts concerning land to be in writing; but, on the facts presented in the record, the position cannot be sustained. This statute applies...