Bourne v. Sherrill

• Decision Date: 18 December 1906
• Citation: 55 S.E. 799,143 N.C. 381
• Court: North Carolina Supreme Court
• Parties: BOURNE . v. SHERRILL.

55 S.E. 799

143 N.C. 381

BOURNE .

v.SHERRILL.

Supreme Court of North Carolina.

Dec. 18, 1906.

1. Contracts—Consideration.

Where, at the time of the sale of a certain lot and as an inducement thereto, the vendee agreed that, if he resold the lot, plaintiff should have the profits realized on such resale, the consideration supporting the sale was sufficient to sustain the collateral agreement.

[Ed Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 267.]

2. Evidence—Written Instrument—Contradiction—Collateral Agreement.

Parol evidence of a collateral agreement by a vendee to pay to the vendor any profits realized from a resale of the property was not objectionable as contradicting the conveyance.

[Ed Note.—For cases in point, see Cent Dig. vol. 20, Evidence, §§ 2048-2051.]

3. Frauds, Statute of—Contract Concerning Land.

At the time plaintiff conveyed certain property to defendant it was agreed that, if defendant resold the property and did not build thereon, plaintiff should have the profits realized on such resale. Held, that such agreement attached to the proceeds from and after a resale, and was not, therefore, an agreement concerning land, within the statute of frauds.

Appeal from Superior Court, Buncombe County; O. H. Allen, Judge.

Action by one Bourne against one Sherrlll. From a judgment for plaintiff, defendant appeals. Affirmed.

Issues were submitted and responded to by the jury as follows: "(1) Did the defendant agree with the plaintiff that If he would sell him the lot that in the event he did not build on it, but sold it, the plaintiff was to have the profits?" Answer: "Yes." "(2) If so, what profit did the defendant derive from the sale of the lot? " Answer: "$263.04. with interest." There was judgment on the verdict for plaintiff, and defendant excepted and appealed.

Julius C. Martin, for appellant.

Locke Craig, for appellee.

HOKE, J. There was evidence of plaintiff tending to show that plaintiff sold and conveyed to defendant a lot in Asheville, for which he had been offered a larger price by another, under assurance that defendant desired to build on the lot as a home for himself and wife; that at the time the lot was conveyed to defendant, as an inducement thereto, and in part consideration for thesale and delivery of the deed, defendant then agreed that If defendant did not build, but resold the lot, plaintiff was to have the profits realized on such resale; that shortly after obtaining the title the defendant resold the lot at a profit, and plaintiff instituted the present suit to recover the profits pursuant to the agreement.

Defendant objected to the introduction of any and all of this testimony and to any recovery predicated thereon, on the grounds (1) that the agreement was without consideration; (2) that the same contradicted the deed; (3) that the contract was invalid under the statute of frauds, the same being a contract concerning realty, and required to be in writing. The decisions of this state are against the defendant on each of the propositions...