Fawcett v. Fawcett

• Decision Date: 05 May 1926
• Docket Number: 360.
• Citation: 132 S.E. 796,191 N.C. 679
• Parties: FAWCETT v. FAWCETT et al.
• Court: North Carolina Supreme Court

132 S.E. 796

191 N.C. 679

FAWCETT v. FAWCETT et al.

No. 360.

Supreme Court of North Carolina

May 5, 1926

Appeal from Superior Court, Forsyth County; Lynn, Judge.

Action by Essie B. Fawcett personally and as administratrix of George D. Fawcett and as guardian of Frances Fawcett and others against T. G. Fawcett and others. Judgment for defendants, and plaintiff appeals. No error.

Geo. D Fawcett and T. G. Fawcett were brothers, each owning stock in the First National Bank of Mt. Airy. On August 11, 1908, they entered into the following contract:

"Whereas upon the death of either party of this contract, it is the desire and will of each and both that any and all shares of stock in the First National Bank of Mt. Airy, N. C., owned by either of the parties of this contract, at the time of death, shall become the property of the survivor, upon a par basis, and this instrument is a contract made by each and both parties hereto, to sell to the survivor said stock at par, and to give to the survivor five years during which to make payment for said stock, to be divided into five equal annual payments. And this contract shall be binding upon the administrators, executors or assigns of either party. This contract may be canceled by either party upon a change of mind, circumstances or sentiment with proper notice to the other party hereto in writing."

Geo. D Fawcett died intestate on May 20, 1920, leaving as his heirs and distributees his widow and three children. Soon afterwards T. G. Fawcett took charge of the intestate's bank stock, had it retired or canceled, and accepted from the bank other certificates of stock issued to himself in lieu thereof.

On the trial, T. G. Fawcett testified that he was cashier, and that his brother had been president of the bank; that his brother had held $29,250 in stock of the par value of $100; that of this amount he had obtained from his mother $15,625, for which he had given her his note secured by a deposit of the stock. He testified that he had executed and delivered to Essie B. Fawcett, widow and administratrix of Geo. D. Fawcett, his notes for the stock he had taken up pursuant to the agreement, and had delivered to her the shares of stock as collateral security. He said that the certificates originally issued to his brother had been indorsed by Essie B. Fawcett, and that he had in all respects complied with the contract between him and his brother.

Geo. D. Fawcett and Essie Fawcett were married in 1907. Their first child was born in May, 1909, the second in September, 1912, and the third in July, 1915.

The court instructed the jury, if they believed the evidence, to answer the first issue "No," and the second issue "Nothing." Thereupon the following verdict was returned:

"(1) Are the plaintiffs the owners and entitled to the possession of the stock in the First National Bank, described in the complaint? Answer: No.

(2) What sum, if any, are the defendants indebted to the plaintiffs? Answer: Nothing."

Judgment and appeal by the plaintiff for error assigned.

R. C. Freeman, of Dobson, and Holton & Holton, of Winston-Salem, for appellant.

Carter & Carter, of Mt. Airy, and Swink, Clement & Hutchins, of Winston-Salem, for appellees.

ADAMS J.

The appellant contends that the alleged contract between George D. Fawcett and T. G. Fawcett should have been excluded, because it was against public policy, unsupported by a valuable consideration, and therefore void and of no effect. To this position we cannot give our assent. Any benefit to the promisor or any loss or detriment to the promisee is a sufficient consideration to support a contract. In Brown v. Ray, 32 N.C. 72, 51 Am. Dec. 379, it is said that to make a consideration it is not necessary that the person giving the promise should receive or expect to receive any benefit; it is sufficient if the other party be subjected to loss or inconvenience. A promise for a promise, a right, interest, or benefit accruing to the one party, or forbearance, detriment, or loss given, suffered, or undertaken by the other, is sufficient to constitute a valuable consideration. Institute v. Mebane, 81 S.E. 1020, 165 N.C. 644; Brown v. Taylor, 93 S.E. 982, 174 N.C. 423, L. R. A. 1918B, 293; Acme Mfg. Co. v. McCormick, 95 S.E. 555, 175 N.C. 277, L. R. A. 1918F, 572; Exum v. Lynch, 125 S.E. 15, 188 N.C. 392. Nor do we find in the contract anything inconsistent with the doctrine of public policy. It has been said that public policy is an unruly horse, astride which one may be carried into unknown paths; and, observant of the danger, the courts as a rule are not alert to denounce a transaction as invalid, on the ground that it is against public policy, unless the transaction contravenes some positive statute or some established rule of law. A contract, for example, whereby A agrees to make a will in favor of B, or to refrain from making a will, is not of itself void on any ground of public policy; and a contract which is to be performed at the death of one of the parties is not for this reason illegal.

The agreement in question is not open to the objection that it is a testamentary disposition of property. Clayton v. Liverman, 29 N.C. 92; Egerton v. Carr, 94 N.C. 649, 55 Am. Rep. 630; Phifer v. Mullis, 83 S.E. 582, 167 N.C. 405; In re Southerland, 124 S.E. 632, 188 N.C. 325. It has only one witness, and purports to be, not a will, but an executory agreement. Six times it is specifically designated a "contract"; evidently it is "a present contract presently executed," the performance of which is deferred until the death of one of the parties. In Green v. Whaley, 197 S.W. 355, 271 Mo. 636, 653, it is said that a contract of this character resembles an agreement between two persons to make mutual wills, or to devise property in a certain way, or to leave it to a person at the death of the owner, without designating in what particular way it is to vest in the party to whom it is given; and in McKinnon v. McKinnon, 56 F. 409, 5 C. C. A. 530, the court said that such a contract is an executory agreement, which determines the rights of the parties inter se and provides what disposition shall be made of the property on the happening of a certain event-a contract which at the promisor's death will be specifically enforced in equity or become the foundation for an action at law. It is upon this principle that a negotiable instrument may be made payable after death or a contract enforced which provides that compensation shall be made after death for services rendered in the lifetime of the promisor. Lipe v. Houck, 38 S.E. 297, 128 N.C. 115; 2 Page on Contracts, § 865; Daniel on Neg. Ins. § 46; Koslowski v. Newman, 105 N.W. 295, 74 Neb. 704, 3 L. R. A. (N. S.) 704; Krell v. Codman, 28 N.E. 578, 154 Mass. 454, 14 L. R. A. 860, 26 Am. St. Rep. 260; Goff v. Supreme Lodge, 134 N.W. 239, 90 Neb. 578, 37 L. R. A. (N. S.) 1191; Buchtel College v. Chamberloix, 84 P. 1000, 3 Cal.App. 246; 6 R. C. L. 710; 13 C.J. 271(60). See, also, East v. Dolihite, 72 N.C. 562; Stockard v. Warren, 95 S.E. 579, 175 N.C. 283; Burch v. Bush, 106 S.E. 489, 181 N.C. 125.

In our opinion, the contract sued on is therefore neither void nor illegal. It contains a stipulation, however, by which the appellant contends that it may be avoided:

"This contract may be canceled by either party upon a change of mind, circumstances or sentiment with proper notice to the other party hereto in writing."

There is no evidence that Geo. D. Fawcett gave a notice written or verbal of his purpose or desire to cancel the contract; but the appellant says that the birth of three children wrought a change in the intestate's circumstances which supplied the written notice and made void the agreement.

Under our statute law a will is not revoked by any presumption of an intention on the ground of an alteration in circumstances or by the birth of a child after the will is made, although children subsequently born are entitled to share in the estate. C. S. §§ 4135, 4169. But, as we have said, the instrument in controversy is an executory contract, not a testament; hence the appellant's contention must be determined by the law of contracts. A contract may be discharged by performance; by a breach of such a nature as to justify the innocent party in treating it as rescinded; by fraud, mistake, or duress; by release; by renunciation by parol agreement; by accord, novation,...