Daughtry v. Daughtry
| Decision Date | 03 November 1943 |
| Docket Number | 384. |
| Citation | 27 S.E.2d 446,223 N.C. 528 |
| Parties | DAUGHTRY v. DAUGHTRY et al. |
| Court | North Carolina Supreme Court |
Defendants who were only defendants having any interest adverse to interest of plaintiff, had right to lodge motion for dismissal of entire action. C.S. § 567.
This is an action instituted by the plaintiff, Emma Pearl (Keen) Daughtry, for the recovery of $6,000, as damages for breach of an oral contract alleged to have been made by the late John W. Keen and his wife, the late Sarah Keen, of the first part, and Mellia Catherine Reeves on behalf of the plaintiff Emma Pearl Reeves (subsequently Keen), her infant daughter of the second part, whereby and wherein the parties of the first part agreed that they would give or devise their real estate to the plaintiff, and the party of the second part agreed that the parties of the first part might adopt her infant daughter, Emma Pearl Reeves, and change her name from Reeves to Keen; and it is alleged that the party of the second part in all respects complied with the said contract, and the adoption as therein contemplated was accomplished; that the parties of the first part have both died, and have not only failed to convey or to devise their real estate to the plaintiff, Emma Pearl (Reeves) Keen (now by marriage Daughtry), but on the contrary have by will devised a large portion of their real estate to the defendant Trudie Mae Bass, devising but a small portion thereof to the plaintiff and to the defendant Annie J. Strickland; that the plaintiff during the lives of John W. Keen and Sarah Keen rendered to them valuable personal services; that by reason of the breach of the said contract the plaintiff has suffered damages in the sum of $6,000, and by reason of the rendition of said services for which she has received no compensation she is entitled to recover the sum of $6,000 upon the theory of implied assumpsit or quantum meruit.
When the plaintiff had introduced her evidence and rested her case, the defendants Trudie Mae Bass and her husband, Hubert Bass, moved for judgment as in case of nonsuit and to dismiss the action, and renewed said motion at the close of all the evidence (C.S. § 567), which motion was allowed, and from judgment predicated upon such ruling the plaintiff appealed, assigning error.
J. Faison Thomson, of Goldsboro, for plaintiff, appellant.
A. McL. Graham and W.H. Fisher, both of Clinton, for Trudie Mae Bass and her husband, Hubert Bass, defendants, appellees.
In the course of the trial the plaintiff upon her own motion, upon leave of Court, deleted from her complaint all allegations as to any cause of action based on the theory of implied assumpsit or quantum meruit and took a voluntary nonsuit as to any cause of action based on such theory. Whereupon the defendants Trudie Mae Bass and her husband, Hubert Bass, urged their motion for a judgment as of nonsuit upon all theories and for dismissal of the entire action, which motion was allowed, and from judgment predicated upon such ruling the plaintiff appealed, assigning errors.
The plaintiff upon her own request and motion having submitted to a voluntary nonsuit as to any alleged cause of action on the theory of implied assumpsit or quantum meruit based upon personal services rendered by her to her adopting parents, the only question left for answer by this court is: Can an action for breach of an oral contract to give or to devise real estate be maintained for damages resulting therefrom, as upon a breach of a special contract? The decisions of this Court impel a negative answer.
The law is to the effect that an oral contract to give or to devise real estate is void by reason of the Statute of Frauds, C.S. § 988, which provides that "all contracts to sell or convey any lands *** shall be void unless said...
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