Little v. McCarter
| Decision Date | 31 October 1883 |
| Citation | 89 N.C. 233 |
| Court | North Carolina Supreme Court |
| Parties | JOHN LITTLE v. H. F. MCCARTER and others. |
ACTION commenced before a justice of the peace and tried on appeal at Fall Term, 1883, of ASHE Superior Court, before Avery, J.
The defendants filed an answer to the oral complaint, by leave of the judge.
On the trial the plaintiff testified in his own behalf, that one Levi McCarter was trying to sell to him a tract of land, on which the said McCarter resided, and demanded therefor two thousand dollars, but the plaintiff offered him eight hundred dollars, which he refused to take. The plaintiff then having abandoned the idea of purchasing the land, left the house of McCarter, and on his way home passed the house where the defendants H. F. McCarter and G. C. McCarter resided. The defendants told the plaintiff that Levi McCarter was a troublesome neighbor; that he turned his stock on their fields and destroyed their grain; and agreed that if the plaintiff would go back and purchase the land that they would pay one hundred dollars of the purchase money. The proposal was not made in writing, but the defendants promised that if the plaintiff would buy the land they would execute a joint note for the one hundred dollars. After this conversation with the defendants, he went back to the house of Levi McCarter and bought the land at the price of two thousand dollars, and settled upon it and has lived there ever since, and that he was induced to buy the land by the promise of the defendants to pay one hundred dollars, if he would make the purchase and settle upon it, and that he did buy it in August and moved to it the winter following.
Plaintiff further testified that after he had purchased the land, the defendant H. F. McCarter promised to pay him two hundred dollars for a small piece of the land, and told him that the land was not worth more than one hundred dollars, but that he would pay the plaintiff in that way the one hundred promised for making the purchase; and, that subsequently and before this action was brought, the other defendant told him that he would pay his part, fifty dollars. No part of the one hundred dollars has ever been paid.
The defendants insisted that the plaintiff had not shown facts sufficient to constitute a cause of action, for the reasons:
1. That there was no writing executed by the defendants, and a verbal agreement, such as that set up by the plaintiff, was void.
2. That apart from the statute of frauds, the testimony of the plaintiff as to the agreement before he purchased the land, did not show any liability for which they could be sued jointly.
3. That the plaintiff could not recover against the defendants, either upon the alleged offer of H. F. McCarter to buy a part of the land and pay double its worth, or the alleged promise of G. C. McCarter to pay fifty dollars, his part, such promise being made without consideration, and if made upon consideration, would only bind the party making the promise.
4. That there was no complaint filed by the plaintiff.
Upon an intimation from the court that the plaintiff could not recover, the plaintiff submitted to a nonsuit and appealed.
Mr. J. W. Todd, for plaintiff .
Mr. Q. F. Neal, for defendants .
The statute of frauds has no application to the contract which is the subject of this action. It is neither a contract for the purchase of an interest in land, nor is it a promise to answer for the debt or default of another, within the statute of frauds.
The defendants made no contract for the purchase of an interest in the land of Levi McCarter. That was a contract altogether between the plaintiff and the said McCarter. If the defendants, when the plaintiff was negotiating for the purchase of the land, had promised, in consideration of McCarter's selling it to plaintiff for two thousand dollars, to pay said McCarter one hundred dollars as a part of the price of the land, and had been sued by McCarter, the statute of frauds might have been pleaded in bar of his recovery. But the defendants were not parties to the...
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