Britt v. Allen

CARSON, Judge. While the plaintiff was attempting to testify concerning her verbal contract with the defendant, the defendant objected to almost every question propounded by plaintiffs’ attorney. Most of the objections were sustained on the grounds that the questions were leading. While some of the questions were impermissively leading, others were proper in form and should have been allowed. It would be of no benefit to relate here all of the questions asked by plaintiffs’ attorney and the objections entered in response thereto. Suffice it to say that the plaintiff should have been allowed to testify as to her conversation with the defendant and the alleged verbal contract entered into between the plaintiff and the defendant. Apparently, the trial court considered the evidentiary matters which were excluded in arriving at his decision directing a verdict in favor of the defendant. Had he not considered the excluded portions of the plaintiff’s testimony, there would have been nothing upon which to base his findings of fact. The court found that the plaintiffs had failed in their case in three material respects. The first was that the evidence did not conform to the allegations of the complaint. However, the plaintiffs alleged the ownership of the land, the existence of the deed of trust, the foreclosure sale, and the related conversation between the plaintiff, Alice Britt, and the defendant, Allen. If the [500] testimony had been admitted at the proper places, there would have been sufficient evidence presented to sustain the plaintiffs’ burden of proof. This matter would properly have been for the jury and would not have been the subject of a directed verdict. The trial court further held that the alleged contract was unenforceable as being within the purview of the statute of frauds. The court held that it was a contract for the sale of land and hence unenforceable. Our courts have tried to avoid the sometimes harsh result that a strict application of the statute of frauds would bring to unknowing and uneducated persons. It has been avoided on occasion by the application of a parol trust. This has been specifically approved by our Supreme Court on several occasions. Bryant v. Kelly, 279 N.C. 123, 181 S.E. 2d 438 (1971); Roberson v. Pruden, 242 N.C. 632, 89 S.E. 2d 250 (1955); Embler v. Embler, 224 N.C. 811, 32 S.E. 2d 619 (1945). If the jury had believed the plaintiffs’ allegations that the defendant had purchased the land under the circumstances as indicated, a constructive trust could have been declared; and the defendant could have been ordered to convey the property to the plaintiffs to comply with the agreement. The trial court further found that there was no consideration for the alleged promise of the defendant. It is necessary for the existence of a valid contract that there be consideration extending from each side. Investment Properties v. Norburn, 281 N.C. 191, 188 S.E. 2d 342 (1972); Stonestreet v. Oil Co., 226 N.C. 261, 37 S.E. 2d 676 (1946). Had the jury believed the plaintiffs’ evidence, it could have held that a valid contract had been established. The plaintiffs had agreed not to try to reinstate the loan but to allow the foreclosure sale to be held. They had further agreed to deed 8 or 10 acres above the driveway to the defendant for his consideration in carrying out the bargain. The defendant had agreed to purchase the property at the sale and deed it to the plaintiffs. He further agreed to pay the $3,000.00 necessary to satisfy the note and deed of trust. In return for his promise, he received the promise of the plaintiffs to deed to him the property in question. Thus, there were mutual promises and forebearances sufficient to support a bilateral contract. Helicopter Corp. v. Realty Co., 263 N.C. 139, 139 S.E. 2d 362 (1964); Foundation, Inc. v. Basnight, 4 N.C. App. 652, 167 S.E. 2d 486 (1969). [501] There are other assignments of error presented by the appeal, but we do not deem it necessary to decide them inasmuch as they will probably not occur at a future trial. For the foregoing reasons we award a New trial. Chief Judge Brock and Judge Morris concur.