Bailey v. . Bishop

House, I., after stating tbe case: On exceptions formally noted, defendant objects to tbe validity of tbis recovery, chiefly by reason of tbe statute of frauds, requiring contracts concerning land to be in writing; but, on tbe facts presented in tbe record, tbe position cannot be sustained. Tbis statute applies to contracts wben and to tbe extent that tbey are executory, and where it appears that every feature of tbe transaction coining within tbe purview of tbe statute has been executed, Its provisions no longer affect the matter. Hall v. Fisher, 126 N. C., 205. And so it is here. Tbe right of way has been conveyed to tbe city, tbe paving has been done, and tbe issue between these parties, so far as tbe statute of frauds is concerned, involves only a moneyed demand, coming within tbe doctrine as declared in Bourne v. Sherrill, 143 N. C., 381, and that class, of cases; and on tbe facts presented to be determined under the general principles of indebitatus assumpsit. Tbe evidence of tbe defendant is not more fully set out, for tbe reason that tbe jury have accepted tbe plaintiff’s version of tbe occurrence, an excerpt from which is given in tbe statement of facts; and, considering tbe case in that aspect, when tbe defendant stipulated with tbe city authorities for the entire right of way, including the portion through plaintiff’s land, and agreed that if tbe street was opened, “be would stand between plaintiff and all costs; that be bad agreed to do tbe paving,” such agreement established a primary liability for such cost on tbe part of defendant, and tbe plaintiff, having been compelled by tbe authorities to pave and pay for tbe sidewalk, an obligation arose on tbe part of defendant to reimburse plaintiff; and tbis is tbe claim recovered in tbe present suit.. Tbe subsequent conveyance of tbe right of way by plaintiff and ratification of defendant’s action would create a privity between them in reference to tbis transaction, but on authority no such privity is required to tbe validity of plaintiff’s demand. In Keener on Quasi Contracts, at page 396, the doctrine is stated thus: “Tbe question of allowing a plaintiff to recover from a defendant for tbe payment of a claim existing in fact against himself, may arise in a case where tbe plaintiff and tbe defendant sustained to each other tbe relationship of principal and surety, or that of cosureties, or it may arise where tbe parties are strangers to each other with reference to tbe transaction in question.- *386 “It may be stated as a general proposition, tbat a plaintiff can recover against a defendant as for money paid to his nse to the extent that the claim paid by the plaintiff should have been paid by the defendant. Thus, it was held in Brown v. Ilodgson that the plaintiffs, common carriers, who by mistake delivered to the defendant goods consigned to another, could recover from the defendant the amount of money which they were compelled to pay the consignee of the goods in consequence of the defendant having appropriated the goods to his own use. Mansfield, O. J., said: ‘The plaintiffs pay Payne on account of these goods being wrongfully detained by Hodgson. They paid the value to the person to whom both they and Payne were bound to pay; and this, therefore, is not the case of a man officiously and without reason paying money for another; and therefore the action may be supported.’ ” And the statement is supported by many well-considered decisions of the courts. San Gabriel v. Whitmer Co., 96 Cal., 623; Nutter v. Sydenstuckher, 11 W. Ya., 535. In the California case it was held: “Where a plaintiff, either by compulsion of law, or to relieve himself from liability, or to save himself from damage, has paid money, not officiously, which the defendant ought to have paid, a count in assumpsit for money paid will be supported. In such case the law implies a request on the part of the defendant and a promise to repay, and the plaintiff has the same right of action as if he had paid the money at the defendant’s express request.” And in Nutter v. Sydenstucher, supra: “In general, where the plaintiff shows that he either by compulsion of law, or to relieve himself from liability, or to save himself from damage, has paid money which the defendant ought to have paid, the' count for money paid will be supported.” And the same general principle was declared and upheld by our own Court in R. R. v. R. R., 141 N. C., 368-386. There is no error in the proceedings below, and the judgment in plaintiff’s favor must be affirmed. No error.