#### INVESTMENT PROPERTIES OF ASHEVILLE, INC., and BAXTER H. TAYLOR v. CHARLES S. NORBURN

No. 7128SC642

(Filed 12 January 1972)

Appeal by plaintiff from Martin, Harry C., Judge, 22 February 1971 Session of Superior Court held in Buncombe County.

Plaintiffs brought this action seeking to recover $19,456.88, the cost of grading and preparing a parcel of land belonging to Martha Norburn Mead Allen, defendant’s sister, for construction of a large motel complex. Plaintiffs alleged: From and after 10 May 1965 plaintiffs negotiated with defendant, as agent for his sister, in regard to a long term lease under which plaintiffs would prepare the land and erect a large motel complex. Defendant executed a guaranty agreement whereby he guaranteed to plaintiffs that he would be personally liable for the costs of preparing the land if the lease agreement was not consummated and his sister did not pay the costs of preparing the land. The land preparation was performed and completed by Asheville Contracting Company; Martha Norburn Mead Allen refused to pay, whereupon plaintiffs paid Asheville Contracting Company and defendant is now obligated to plaintiffs on his guaranty agreement.

*411Plaintiffs instituted a separate action against Martha Nor-burn Mead Allen to recover the $19,456.88 costs of preparing the land. In the action against her, they alleged her primary obligation to pay.

The two cases were consolidated for trial and resulted in a verdict against Martha Norburn Mead Allen in the sum of $19,456.88 in the action against her; and resulted in a dismissal of this action against Charles S. Norburn upon a verdict of the jury finding there was no consideration for defendant’s guaranty agreement.

Martha Norburn Mead Allen has appealed from the verdict and judgment adverse to her, and an opinion by Judge Britt finding no error in her trial is being filed contemporaneously with the filing of this opinion.

Bennett, Kelly & Long, by Harold K. Bennett, and Hendon & Carson, by George Ward Hendon, for plaintiffs.

Williams, Morris & Golding, by James F. Blue III, for defendant.

BROCK, Judge.

We have given careful consideration to all of the assignments of error and arguments brought forward by plaintiff but we are impelled to the conclusion that the judgment should be affirmed. In our opinion the case was properly submitted to the jury upon applicable principles of law and that no error has been made to appear which would justify a new trial.

No error.

Judge Britt concurs.

Judge Vaughn dissents.