Henderson v. Forrest

• Decision Date: 18 October 1922
• Docket Number: 180.
• Citation: 114 S.E. 391,184 N.C. 230
• Parties: HENDERSON v. FORREST ET UX. FORREST ET UX. v. HAGOOD ET AL.
• Court: North Carolina Supreme Court

114 S.E. 391

184 N.C. 230

HENDERSON v. FORREST ET UX.

FORREST ET UX. v. HAGOOD ET AL.

No. 180.

Supreme Court of North Carolina

October 18, 1922

Appeal from Superior Court, Craven County; Cranmer, Judge.

Actions by Ray Henderson against J. L. Forrest and wife and by J. L Forrest and wife against B. F. Hagood and others. Actions consolidated. From judgment on a verdict that defendant Hagood Realty Company was indebted to plaintiff Forrest in the sum of $4,000, defendant Realty Company appeals. No error.

Civil action tried at the February term, 1922, of Craven, before Cranmer, J., and a jury. On December 17, 1920, Ray Henderson brought suit against J. L. Forrest and his wife, Sarah, to recover $6,500 due on a promissory note for this amount executed to him April 29, 1920, and on January 25, 1921, he made Herman D. Forrest and Howard L. Forrest, sons of J. L Forrest, defendants, and alleged that their father had conveyed to them certain real estate with intent to defraud the plaintiff, and that they had participated in the fraud. On January 31, 1921, J. L. Forrest and his wife instituted suit against Ray Henderson, B. F. Hagood, and the Hagood Realty Company (a copartnership composed of Henderson and Hagood), and alleged in their complaint that H. W. Armstrong had given the realty company an option on a tract of land in No. 8 township, and the realty company had contracted to sell it to Forrest at the price of $31,000; that Forrest owned a farm in No. 1 township of the value of $20,000 and the defendants contracted to see that Forrest was paid $19,500 for his farm if he would purchase the Armstrong land, and that the price offered him should go in part payment for the Armstrong tract. Forrest alleged that Armstrong executed, and through the realty company delivered to him, a deed for the tract in No. 8 township on May 8, 1920, and he executed notes and a deed of trust to secure the purchase price, and that the note in suit was executed to enable the realty company to make the first payment to Armstrong, and was not to be paid by Forrest, but by the Realty Company out of the sale of the Forrest land. Forrest alleged that these representations were made by the realty company through Henderson and Hagood, and that he and his wife were thereby induced to execute the note in question. Henderson alleged that the realty company had no connection with the purchase or sale of the Armstrong land but the trade was made with Henderson alone; that Armstrong demanded a payment of $5,000 cash and Forrest, not having the money, executed the note for $6,500 to pay this amount and Henderson's profits for negotiating the sale, and instructed Henderson to have the note discounted at the bank; and that Armstrong accepted this payment and executed his deed to Forrest. In answer to the issues submitted the jury found that the note in controversy was not to be paid out of the purchase price of the Forrest land; that Forrest and his wife were indebted to Henderson on said note in the sum of $6,000; that the deed from Forrest to his sons was made with intent to defeat Henderson's claim, and the grantees accepted the deed with notice of the fraud; that the realty company guaranteed to purchase or sell the Forrest land at the price of $19,500; and that Forrest was entitled to recover of the Realty Company the sum of $4,000. Judgment. Appeal by the realty company.

A promise to the owner to guarantee the sale of his farm in time to make payments on a note and contract for other land, made to induce execution thereof, was not within the statute, and may be assimilated to a brokerage contract, or to a collateral or ancillary contract by an agent appointed by parol to sell his principal's land; one consideration being sufficient to support both the principal and collateral contract.

Moore & Dunn, of Newbern, for appellant.

Guion & Guion, of Newbern, for appellee.

ADAMS J.

All the issues except the fifth and the sixth were answered by the jury in favor of the appellants, and several of the exceptions relating to these two present the same question. For this reason the merits of the controversy do not require extended discussion.

The appellants first except to the order consolidating the cases on the ground that such consolidation resulted in confusion which was prejudicial to the appellants, and that the court had no authority to make the order. In Hartman v Spiers, 87 N.C. 28, it is held that the consolidation of actions is not authorized where they are essentially unlike, and the parties in each are not the same; and in Wilder v. Greene, 172 N.C. 94, 89 S.E. 1062, it is said that the power to consolidate actions is one that is often required in order that different suits involving practically the same issues may be joined, where it can be done without serious prejudice, for the purpose of preventing confusion and a conflict in verdicts. We think the principles stated in the latter case are applicable here. It is admitted that the realty company, at the time the note in controversy was executed, was a copartnership composed of Henderson and Hagood. In their complaint, Forrest and his wife allege that the...