Burton v. Kenyon, 7919DC846

• Decision Date: 15 April 1980
• Docket Number: No. 7919DC846,7919DC846
• Citation: 46 N.C.App. 309,264 S.E.2d 808
• Court: North Carolina Court of Appeals
• Parties: Ottway BURTON v. David Paul KENYON and Charles "Red" Delk.

Page 808

264 S.E.2d 808

46 N.C.App. 309

Ottway BURTON v. David Paul KENYON and Charles "Red" Delk.

No. 7919DC846.

Court of Appeals of North Carolina.

April 15, 1980.

Ottway Burton, pro se.

T. Worth Coltrane, Asheboro, for defendant-appellee, Charles Delk.

ERWIN, Judge.

Where the record on appeal contains no affidavits, answers to interrogatories, or anything else other than the pleadings upon which to base decision, the motion for summary judgment will be considered as though made under G.S. 1A-1, Rule 12(c), of the Rules of Civil Procedure for judgment on the pleadings. Reichler v. Tillman, 21 N.C.App. 38, 203 S.E.2d 68 (1974).

When a motion for judgment on the pleadings is made, the trial court is required to view the facts and permissible inferences in the light most favorable to the non-moving party, and all well pleaded factual allegations in the non-moving party's pleadings must be taken as true. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974).

When plaintiff's allegations are viewed in that light, taking into consideration all permissible inferences, they tend to show that prior to 16 November 1976, he had agreed to represent defendant Kenyon in four criminal cases; that one of the two promissory notes executed for security of payment by Kenyon was due and unpaid; that some professional services had been rendered to that point; and that two days prior to completion of his services, he, defendant Delk, and defendant Kenyon agreed to a plan where Delk would deduct and forward plaintiff $50 weekly from Kenyon's pay until the debt was paid.

The sole question arising from these facts is whether an agreement entered into by a third person to deduct and forward a sum of money to plaintiff in order to induce performance of an obligation owed by plaintiff to another person, who is an employee of the third person making the promise, but who is in default of his obligation to pay, is void because of lack of consideration. We answer, "No."

It is generally established that a promise to perform an act which the promisor is already bound to perform is insufficient consideration for a promise by the adverse party, Sinclair v. Travis, 231 N.C. 345, 57 S.E.2d 394 (1950); Tile and Marble Co. v. Construction Co., 16 N.C.App. 740, 193 S.E.2d 338 (1972), and undoubtedly, this is sound policy. But the same factors do not come into play where a third person is involved.

Restatement of Contracts § 84 (1932) provides in pertinent part:

"Consideration is not insufficient because of the fact

(d) that the party giving the consideration is then bound by a contractual or quasi-contractual duty to a third person to perform the act or forbearance given or promised as consideration . . ."

The rationale of the Restatement rule is best set forth in 1A. Corbin on Contracts § 176 (1950) wherein it is stated:

"But suppose that the pre-existing duty is owed to a third person and not to the promisor. Is the performance of this kind of duty a sufficient consideration for a promise? The American Law Institute has stated that it is sufficient. This should be supported for two reasons: (1) the promisor gets the exact consideration for which he bargains, one to which he previously had no...