Herndon v. Durham & Southern Railroad

AlleN, J. A parol contract relating to land is not void, but voidable, and we have beld that, when executory, it may be enforced if it is not denied and tbe statute is not pleaded, and tbe evidence to prove it is not objected to (Henry v. Hilliard, 155 N. C., 378), and that, when executed, tbe plea of tbe statute of frauds is no longer applicable. Choat v. Wright, 13 N. C., 289; Hall v. Fisher, 126 N. C., 208. Upon tbe, strength of these authorities, tbe ruling of bis Honor might be sustained upon tbe ground that tbe agreement of tbe superintendent has been performed, but for tbe fact that an easement, such as that claimed, cannot pass except by deed or prescription, and as there is no deed for tbe cattle-way under tbe track, and it has not been used long enough to confer tbe right by prescription, tbe agreement as to tbe easement has not been executed. Treated as a license, tbe position of tbe plaintiffs is no stronger. Tbe weight of authority seems to be in favor of tbe proposition that a license based upon a valuable consideration cannot be withdrawn at will, and certainly not without compensation (Ricker v. Kelly, 10 Am. Dec., 40; Rinch v. Kern, 16 Am. Dec., 501; Mumford v. Whitney, 30 Am. Dec., 71, and notes in annotated edition), but our Court has adopted tbe view to tbe contrary. McCracken v. McCracken, 88 N. C., 272; Kivett v. McKeithan, 90 N. C., 107; R. R. v. R. R., 104 N. C., 658. We do not think, however, tbe plaintiffs are without remedy upon tbe facts as they now appear, and “It is tbe rule with us that in actions of this character, tbe main purpose of which is to obtain a permanent injunction, if tbe evidence raises serious question as to tbe existence of facts which make for plaintiff’s right and sufficient, to establish it, a preliminary restraining order will be continued to tbe bearing. Hyatt v. DeHart, 140 N. C., 270; Harrington v. Rawls, 131 N. C., 39; Whitaker v. Hill, 96 N. C., 2; Marshall v. Commissioners, 89 N. C., 103.” Stancill v. Joyner, 159 N. C., 617. [655] If tbe allegations of tbe plaintiffs axe trae, tbe contract fox tbe purchase of tbe right of way was made by an agent of tbe defendant, and tbe consideration for tbe deed was tbe agreement to pay $10 an acre for tbe land occupied, to construct a siding on tbe land, to furnish wire for a pasture, and to keep open permanently a passway under its track to enable tbe plaintiff’s cattle to pass from one part of their plantation to another part. The defendant has accepted tbe deed based upon this agreement, and is now claiming under it, and there is evidence that it bad knowledge of tbe agreement, and has ratified it, as otherwise it would not have performed it by furnishing wire, etc. If so, tbe law will not permit tbe defendant to retain tbe benefit of tbe contract and repudiate its obligations. Rudasill v. Falls, 92 N. C., 226; Brown v. Davis, 109 N. C., 28; Christian v. Yarborough, 124 N. C., 76. In Rudasill v. Falls, supra, tbe Court, quoting from several authorities, says: “ ‘The principal cannot of bis own mere authority ratify a transaction in part and repudiate as to tbe rest,’ is tbe language of Mr. Justice Story in section 250 of bis work on Agency. 'He must either adopt tbe whole or none.’ Another recent author lays down tbe same doctrine thus: ‘A nullification must extend to tbe whole of a transaction.’ So well established is this principle, that if a party is treated as an agent in respect to one part of a transaction, tbe whole is thereby ratified. From this maxim results a rule of universal application, that where a contract has been entered into by one man as agent of another, the person on whose behalf it has been made 'cannot take tbe benefit of it without bearing its burdens. Tbe contract must be performed in its integrity.’ Ewell’s Evans’ Agency, 70 (Ed. of 1789, p. 95). Tbe rule rests upon sound reason and abundant authority. Crawford v. Barkley, 18 Ala., 270; Hodnett v. Tatum, 9 Ga., 270; Bank v. Hanner, 14 Mich., 208; Coleman v. Itache, 1 Ore., 115.” Again, if the agent exceeded bis authority and tbe defendant bad no knowledge of tbe agreement, there are facts alleged which, if true, are sufficient to justify tbe court in maintaining tbe status quo until tbe final determination of tbe action. Tbe [656] plaintiffs allege that the agent made the agreement for the defendant, and that they demanded that it be reduced to writing; that the agent told them a writing- was unnecessary, and that the defendant would leave said passway and would maintain it for all time; that said agent further represented that the laws of North Carolina would not permit the same to be closed; that they executed their deed relying upon these representations, and the defendant says the agent had no authority to make the agreement or the representations. A promise is usually without the domain of the law unless it creates a contract, but if made, when there is no intention of performance, and for the purpose of inducing action by another, it is fraudulent, and may be made the ground of relief. Hill v. Gettys, 135 N. C., 375; Bradley v. Elliott, 146 N. C., 582. In the Hill case the Court ordered the cancellation of a mortgage because of a fraudulent promise, and in the opinion quotes with approval the following excerpts from text-books and decisions : “The general rule in regard to promises is that they are without the domain of the law unless they create a contract, breach of which gives to the injured party simply a right of action for damages, and not a right to treat the other party as guilty of a fraud. But that proceeds upon the ground that to fail to perform a promise is no indication that there was fraud in the transaction. There may, however, have been fraud in it, and this fraud may have consisted in making a promise with intent not to perform it. To profess an intent to do or not to do, when the party intends the contrary, is as clear a case of misrepresentation and of fraud as could be made. A promise is a solemn affirmation of intention as a present fact. 1 Bigelow on Fraud, 484. (The author is discussing, of course, civil remedies.) 'When a promise is made with no intention of performing it, and for the very purpose of accomplishing a fraud, it is a most apt and effectual means to that end, and the victim has a remedy by action or defense.’ Goodwin v. Horne, 60 N. H., 485. 'The intent is always a question for the jury, and to determine whether the intent was fraudulent the jury have necessarily to look to the circum [657] stances connected with, the transaction or those immediately preceding or following it.’ Des Farges v. Pugh, 93 N. C., 31; 53 Am. Rep., 446.” In the Bradley case there was an exchange of land, and the defendant agreed, as a part of the consideration, to erect two dwellings and outhouses on the land conveyed to the plaintiff, and failed to do so. The issues submitted to the jury were answered in favor of the plaintiff, and in discussing the effect of the verdict the Court says: “If the jury should find, in addition to their findings on the first and second issues, that the defendant fraudulently induced plaintiffs to agree to the exchange by falsely representing and pretending that he would build two suitable dwellings and necessary outhouses on the tract of land, such finding would be an ample basis for the decree cancelling the entire transaction. . . . The subsequent acts and conduct of a' party may be submitted to the jury as some evidence of his original intent and purpose, when they tend to indicate it.” When we consider the assurances of the agent to induce the plaintiffs not to insist upon reducing the agreement to writing, the representations made by him, and the fact that he had no authority to make any agreement or representation, if the allegation of the defendant is true, we are of opinion there is evidence of fraud, and that the defendant cannot retain the fruits of it. If so, the plaintiffs would be entitled to a cancellation of their deed, and the defendant would have to resort to condemnation proceedings to acquire a right of way, and the right to the passway under the track, if reserved in the deeds, would likewise have been subject to condemnation, if necessary to insure the safety of its roadbed. We have not discussed the interesting question presented by plaintiffs’ counsel as to a right to cross the track of the defendant, arising by implication, as it is not necessary to do so as the case is now presented, but there is much respectable authority in support of their contention. Jones Easements, sec. 306; Powell v. R. R., 215 Mo., 352; Corea v. Hignorra, 17 L. R. A. (N. S.), 1019; Ritchey v. Welch, 149 Ind., 217; Uhl [658] v. R. R., 47 W. Va., 59; Fritz v. Tompkins, 168 N. Y., 524; R. R. v. Commissioners, 162 Mass., 83; Powers v. Heffernan, 233 Ill., 603. Upon a review of the whole case, we are of opinion that it was proper to continue the restraining order until the facts can be determined. Affirmed.