Hilliard v. Thompson

• Decision Date: 17 June 1986
• Docket Number: No. 8510SC1268,8510SC1268
• Citation: 81 N.C.App. 404,344 S.E.2d 589
• Parties: W. Staley HILLIARD, Edward Gaskins, and Daniel C. Lynn v. William L. THOMPSON and Mae P. Thompson.
• Court: North Carolina Court of Appeals

Page 589

344 S.E.2d 589

81 N.C.App. 404

W. Staley HILLIARD, Edward Gaskins, and Daniel C. Lynn v. William L. THOMPSON and Mae P. Thompson.

No. 8510SC1268.

Court of Appeals of North Carolina.

June 17, 1986.

William A. Bason, Raleigh, for plaintiffs-appellants.

Howard, Howard, Morelock & From, P.A. by Fred M. Morelock and John N. Hutson, Jr., Raleigh, for defendants-appellees.

WEBB, Judge.

The pleadings and the papers filed in support of and in opposition to the motion for summary judgment do not contain any evidence that William L. Thompson was acting as agent for his wife at the time he signed the contract to sell the property. Summary judgment was properly entered on the claim against her. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). The plaintiffs argue that there was evidence that William L. Thompson approached Daniel C. Lynn and offered him $5,000.00 if he would sell the property, that the property was not owned by the defendants as tenants by the entirety but was wholly owned by the defendant William L. Thompson, and that he was selling the property because his wife wanted a double wide mobile home. The plaintiffs argue that this is evidence from which a jury could conclude William L. Thompson was acting for his wife. We do not believe this is evidence sufficient to submit to a jury on the question of agency. This is particularly true when all the evidence shows the parties agreed Mr. Thompson would take the contract home to be signed by his wife. The marital relationship does not raise a presumption that the husband is acting as an agent for his wife. Albertson v. Jones, 42 N.C.App. 716, 257 S.E.2d 656 (1979).

Reichler v. Tillman, 21 N.C.App. 38, 203 S.E.2d 68 (1974) and Lawing v. Jaynes, 20 N.C.App. 528, 202 S.E.2d 334, modified, 285 N.C. 418, 206 S.E.2d 162 (1974), relied on by the plaintiffs, are not helpful to them. Reichler deals with a question of judgment on the pleadings. The plaintiff had pled that the wife was bound by the contract and this Court held the plaintiff had the right to prove the husband was acting as her agent. In this case we deal with a motion for summary judgment. The parties have forecast what the evidence will be. In Lawing this Court held that the superior court had not made findings of fact sufficient to determine whether a husband was acting for his wife. This Court made some statements as to evidence which would prove agency, which statements are not inconsistent with our decision in this case.

One of the terms of the alleged contract provided that William L. Thompson deliver to the plaintiffs a general warranty deed which would contain a fee simple marketable title. Without the signature of his wife Mr. Thompson could not have delivered such a deed. The plaintiffs would not have been liable on the contract if Mr. Thompson had sued them. There was not a mutuality of obligation. The Restatement (Second) of Contracts § 79 (1981) says that if the requirement of consideration is met, there is no additional requirement of mutuality of obligation. It justifies this rule by saying that the value of a promise is not necessarily affected by the fact that no legal remedy will be available in the event of a breach. We have not been able to find a case in North Carolina dealing with the precise question of whether an agreement which may not be enforceable against one party may nevertheless be enforced against the other. We believe there are cases which assume that such contracts are not enforceable against either party. See Wellington-Sears & Co. v. Dize Awning & Tent Co., 196 N.C. 748, 147 S.E. 13 (1929); Rankin v. Mitchem, 141 N.C. 277, 53 S.E. 854 (1906); and Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410, cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974). In Rankin the Court held that a promise was not enforceable because both sides were not bound by it. The Court said, "[i]n order to make an agreement valid and binding, the promises must be mutual, ...." 141 N.C. at 283, 53 S.E. at 856. In Wellington the Court recognized the principle that there must be mutuality of obligation but held that in that case there was sufficient consideration because there were promises enforceable against the plaintiff. In Mezzanotte it was held there was a mutuality of obligation. We believe we are bound by these cases to hold that because the defendant William L. Thompson could not have enforced the contract against the plaintiffs, the plaintiffs cannot enforce the contract against William L. Thompson. It was not error to grant the motion for summary judgment in favor of William L. Thompson.

Affirmed.

WHICHARD, J., concurs in the result.

JOHNSON, J., concurs in the result and joins in the concurring opinion.

WHICHARD, Judge, concurring in the result.

I concur in the result reached, but I believe the opinion unnecessarily premises the decision on the mutuality of obligation doctrine. It observes that defendant-husband could not have delivered a warranty deed conveying fee simple marketable title without the signature of defendant-wife and that one of the terms of the alleged contract was to provide such a deed. It reasons from these observations that "plaintiffs would not have been liable on the contract if [defendant-husband] had sued them. There was not a mutuality of obligation." Based on this reasoning...