#### BOURNE v. SHERRILL.

(Filed December 18, 1906).

Contracts — Oollateral Agreements — Parol Evidence — Consideration — Statute of Frauds.

Where at the time a lot was conveyed to the defendant, as an inducement thereto and in part consideration for the sale and delivery of the deed, the defendant then agreed with plaintiff that if he did not build on the lot, but resold it, plaintiff was to have the profits realized on such resale: Held, that such agreement could be shown by oral evidence and did not come within the statute of frauds and was not without consideration.

ActioN by Louis M. Bourne against R. G. Sherrill, heard by Judge 0. PL. Allen and a jury, at the September Term, 1906, of the Superior Court of Buncokbe.

Issues were submitted and responded to by the jury as follows:

1. Did the defendant agree with the plaintiff that if he would sell him the lot, that in the event he did not build on it but sold it, the plaintiff was to have the profits ? Answer: Yes.

2. If so, what profit did the defendant derive from the sale of the lot? Answer: $263.04, with interest.

There was judgment on the verdict for plaintiff, and defendant excepted and appealed.

*382 Loche Oraig for'the plaintiff.

Julius 0. Martin for the defendant.

Hoee, J.

There was evidence of plaintiff tending to show that plaintiff sold and conveyed to defendant a lot in Ashe-ville for which he had been offered a larger price by another, under assurance that defendant desired to build on the lot as a home for himself and wife.

That at the time the lot was conveyed to defendant, as an inducement thereto, and in part consideration for the sale and delivery of the deed, defendant then agreed that if defendant did not build, but resold the lot, that plaintiff was to have the profits realized on such resale.

That shortly after obtaining the title, the defendant resold the lot at a profit, and plaintiff instituted the present suit to recover the profits pursuant to the agreement.

Defendant objected to the introduction of any and all of this testimony and to any recovery predicated thereon, on the grounds (1) that the agreement was without consideration; .(2) that the same contradicted the deed; (3) that the contract was invalid under the statute of frauds, the same being a contract concerning realty, and required to- be in writing.

The decisions of this State are against-the defendant on each of the propositions advanced by him. Michael v. Foil, 100 N. C., 178; Sprague v. Bond, 108 N. C., 382.

The consideration arose at the time of the sale, and as part inducement thereto.

The conveyance, the purpose of which was to pass the title, is allowed its full operation, and is therefore in nowise contradicted. And the agreement enforced by this recovery attached to the proceeds from and after the sale, and was not therefore, concerning laud, or any interest therein, within the meaning of the statute of frauds.

*383In Michael v. Foil, supra, it was beld: “At tbe time of tbe delivery of a deed for land, and as a part of tbe inducement for its execution, it was orally agreed between tbe vendor and vendee, that if tbe vendee should sell tbe mineral interest in tbe land during vendor’s life be would pay tbe vendor one-balf of tbe amount received tberefor: Held, that sueb agreement could be shown by oral evidence, and did not come within tbe) statute of frauds.”

In Sprague v. Bond, supra, it was beld as follows: “S., being tbe owner of certain lands, conveyed them by deed absolute to B., upon tbe parol promise of tbe latter, from tbe proceeds of any sale tbe vendee might malee, after paying expenses, etc., tbe vendor should be paid a part: Held, not to be within tbe statute of frauds.” And Shepherd, Judge, delivering tbe opinion, said: “Tbe enforcement of the alleged agreement, after, tbe sale of tbe land, does not in any respect impinge upon tbe terms of tbe conveyance, but relates entirely to tbe payment of tbe consideration. It is true that the plaintiff could not have compelled tbe defendant to execute her agreement to sell tbe land, as there was no enforeible trust, and tbe agreement was within tbe statute of frauds, but this part of tbe agreement has been voluntarily performed, and tbe other part, not being within tbe statute, may now be enforced.”

This last opinion refers with approval to tbe case of Hess v. Fox, 10, Wendell, 436, in which Savage, C. J., delivering tbe opinion in a similar case, said: “No question cali arise on tbe validity of tbe agreement to sell. That was perf ormed, and tbe remaining part was to pay over money, supported by tbe consideration of land conveyed to tbe promiser.”

These authorities are decisive against defendant, and the judgment below is affirmed.

No Error.