{ "id": 12168102, "name": "C. W. MYERS v. S. W. ALLSBROOK", "name_abbreviation": "Myers v. Allsbrook", "decision_date": "1949-02-04", "docket_number": "", "first_page": "786", "last_page": "792", "citations": [ { "type": "official", "cite": "229 N.C. 786" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "28 L. R. A. (N. S.) 407", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "68 S. E. 134", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "152 N. C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272396 ], "opinion_index": 0, "case_paths": [ "/nc/152/0651-01" ] }, { "cite": "176 S. E. 275", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N. C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624459 ], "opinion_index": 0, "case_paths": [ "/nc/207/0201-01" ] }, { "cite": "73 N. E. 234", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "156 N. C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272119 ], "opinion_index": 0, "case_paths": [ "/nc/156/0553-01" ] }, { "cite": "35 N. C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274062 ], "opinion_index": 0, "case_paths": [ "/nc/35/0086-01" ] }, { "cite": "161 S. W. 275", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "2 Am. S. R. 317", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "3 S. E. 826", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "98 N. C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273323 ], "opinion_index": 0, "case_paths": [ "/nc/98/0067-01" ] }, { "cite": "20 N. C. 353", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "51 S. E. 949", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 N. C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652548 ], "opinion_index": 0, "case_paths": [ "/nc/139/0326-01" ] }, { "cite": "42 N. C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681148 ], "opinion_index": 0, "case_paths": [ "/nc/42/0080-01" ] }, { "cite": "94 N. C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650576 ], "opinion_index": 0, "case_paths": [ "/nc/94/0142-01" ] }, { "cite": "12 S. E. 447", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "107 N. C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274273 ], "opinion_index": 0, "case_paths": [ "/nc/107/0552-01" ] }, { "cite": "59 S. E. 160", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "146 N. C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270170 ], "opinion_index": 0, "case_paths": [ "/nc/146/0018-01" ] }, { "cite": "216 N. C. 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598238 ], "opinion_index": 0, "case_paths": [ "/nc/216/0282-01" ] }, { "cite": "34 N. C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683700 ], "opinion_index": 0, "case_paths": [ "/nc/34/0018-01" ] }, { "cite": "44 N. C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276874 ], "opinion_index": 0, "case_paths": [ "/nc/44/0422-01" ] }, { "cite": "67 Am. Dec. 263", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "49 N. C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681394 ], "opinion_index": 0, "case_paths": [ "/nc/49/0071-01" ] }, { "cite": "135 S. E. 454", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624779, 8624822 ], "opinion_index": 0, "case_paths": [ "/nc/192/0549-01", "/nc/192/0549-02" ] } ], "analysis": { "cardinality": 742, "char_count": 16655, "ocr_confidence": 0.465, "pagerank": { "raw": 2.2606484217322146e-07, "percentile": 0.7825979429688757 }, "sha256": "37cc831a5a3104ebf0f143521a908518001337d0a94836dbe65200bd6c4101d7", "simhash": "1:a8f7edbf6c08986f", "word_count": 2904 }, "last_updated": "2023-07-14T16:16:54.231798+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. W. MYERS v. S. W. ALLSBROOK." ], "opinions": [ { "text": "ERVIN, J.\nThe defendant asserts that the nonsuit might well be sustained on the ground that the evidence shows that in his transactions with plaintiff he acted solely as agent for Joe Allsbrook, a disclosed principal; that any promise he may have made to plaintiff to pay the check for $4,175 was simply a promise to make payment of a debt of his principal out of assets of his principal subject to his control as agent; and that both he and the plaintiff understood that he did not undertake to assume any obligation of his principal as a personal liability. Way v. Ramsey, 192 N. C. 549, 135 S. E. 454; Davis v. Burnett, 49 N. C. 71, 67 Am. Dec. 263; McCall v. Clayton, 44 N. C. 422; Meadows v. Smith, 34 N. C. 18. To be sure, the testimony is susceptible of this construction.\nInterpreted most favorably for plaintiff, however, the evidence is sufficient to justify an alternative finding by a jury that the defendant promised to pay to plaintiff the pre-existing obligation of Joe Allsbrook to plaintiff evidenced by the $4,175 check in consideration of the plaintiff extending the time for the payment of such obligation for \u201cabout two weeks\u201d and refraining from taking legal action against Joe Allsbrook or his property upon such obligation during such period. But since the promise shown by this view of the testimony was made to plaintiff by defendant byword of mouth only, we are confronted on this appeal by the determinative question of whether the promise constituted \u201ca special promise to answer the debt, default or miscarriage\u201d of Joe Allsbrook under the section of the statute of frauds prescribing that \u201cno action shall be brought whereby ... to charge any defendant upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum Or note thereof, shall be in writing, and signed by the party charged therewith or some other person thereunto by him lawfully authorized.\u201d G.S. 22-1.\nIn our opinion, this question must be answered in the affirmative as a matter of law under the pleadings and the testimony. It is to be noted that the creation of the debt of Joe Allsbrook to plaintiff antedated the making of the promise of the defendant to plaintiff. Since there \"was neither allegation nor proof of any agreement that the debt was extinguished by the promise, the liability of Joe Allsbrook to the plaintiff remained. Indeed, the language used by the defendant to plaintiff clearly manifested that the defendant had no intent to assume any independent duty of payment making the debt his own irrespective of the liability of Joe Allsbrook. His promise to the plaintiff was, in effect, that he would personally see that the check in controversy was paid in the event the assets of Joe Allsbrook proved insufficient to satisfy it. Thus, he simply superadded his promise to the antecedent obligation of Joe Allsbrook, rendering it collateral to the same.\nIt is elementary that the plaintiff must recover, if he recovers at all, on the cause of action made out by his complaint. Barron v. Cain, 216 N. C. 282, 4 S. E. (2) 618; McCollum v. Chisholm, 146 N. C. 18, 59 S. E. 160; Simpson v. Simpson, 107 N. C. 552, 12 S. E. 447; Willis v. Branch, 94 N. C. 142; Melvin v. Robinson, 42 N. C. 80. The complaint contains no allegation to the effect that the promise of the defendant was made for his own benefit or that he had any personal, immediate, or pecuniary interest in the transaction. While it is alleged \u201cthat after the death of Joe Allsbrook, the defendant and two other persons bought the business of Joe Allsbrook known as City Auto Service, and the defendant and the two other persons are continuing the operation of said business,\u201d it is nowhere suggested either in the pleadings or in the testimony that the defendant ever contemplated purchasing the business or any interest therein at any time during the life of Joe Allsbrook.\nThe only consideration for the oral promise of the defendant alleged in the complaint and shown by the evidence was the agreement and act of the plaintiff extending time for the payment of the check of Joe Allsbrook for \u201cabout two weeks\u201d and forbearing to take legal action against Joe Allsbrook or his property upon such check during that period.\nUndoubtedly, a forbearance to exercise legal rights is a sufficient consideration for a promise made on account of it in the general law of contracts. Chemical Co. v. McNair, 139 N. C. 326, 51 S. E. 949; Lowe v. Weatherley, 20 N. C. 353. This is true even when the forbearance is in respect to the liability of a third person rather than that of the promisor. Bank v. Bridgets, 98 N. C. 67, 3 S. E. 826, 2 Am. S. R. 317.\nBut the mere fact that there may be a new consideration for the oral promise of a defendant to pay the subsisting debt of another is not sufficient of itself to take the promise out of the prohibition of the statute of frauds. \u201cTo say that any consideration will take a promise based thereon out of the statute is to make the statute useless. For if there is no consideration the promise is invalid without the statute. The statute is aimed at what were valid contracts; that is to say, it makes invalid contracts not in writing which would otherwise have been valid.\u201d Martin v. Harrington, 174 Mo. A. 707, 161 S. W. 275. See, also, in this connection, Stanly v. Hendricks, 35 N. C. 86. Here, the forbearance of the plaintiff was a benefit to the debtor, Joe Allsbrook, and a detriment to the plaintiff. Nevertheless, it was not beneficial to the defendant. This statement is applicable to this phase of the case : \u201cA promise to a creditor to pay his debtor\u2019s debt, the debtor not being discharged by the arrangement, in consideration of the creditor giving time to the debtor, or forbearing to sue him, or staying, or discontinuing a suit against him, or forbearing to levy an attachment or execution, on the debtor\u2019s property, or suspending proceedings on an execution against the debtor, the lien of the execution remaining unimpaired, or forbearing to evict the debtor from premises leased by him, or to take out administration on the estate of the original debtor, is within the statute of frauds for the reason that such considerations are not regarded as directly beneficial to the promisor. The rule is different where the creditor\u2019s forbearance results in a direct benefit to the promisor, which was the object of the promise, as where the promisor has an interest in the property which will be prejudiced by the bringing or continuing of the adverse proceedings. Mere forbearance without benefit to the promisor therefrom may be a sufficient consideration to uphold the promise as a contract, although it may be insufficient to take it out of the operation of the statute.\u201d 27 C. J., Statute of Frauds, section 33.\nThis passage is in complete accord with Peele v. Powell, 156 N. C. 553, 73 N. E. 234, and Gennett v. Lyerly, 207 N. C. 201, 176 S. E. 275, where the relevant rules are thus stated. \u201cWhere the promise is for the benefit of the promisor, and he has a personal, immediate, and pecuniary benefit in the transaction, or where the promise to pay the debt of another is all or part of the consideration for property conveyed to the promisor, or is a promise to make good notes transferred in payment of property, the promise is valid although in parol. If, however, the promise does not create an original obligation, and it is collateral, and is merely superadded to the promise of another to pay the debt, he remaining liable, the prom-isor is not liable, unless there is a writing; and this is true whether made at the time the debt is created or not.\u201d\nWe have not overlooked the contention of the plaintiff that this case is governed by the principle that the statute of frauds does not embrace an oral promise to pay the debt of another out of money or property which the debtor has placed in the hands of the promisor for the purpose of paying his debts. Dale v. Lumber Co., 152 N. C. 651, 68 S. E. 134, 28 L. R. A. (N. S.) 407; 49 Am. Jur., Statute of Frauds, section 87; 37 C. J. S., Statute of Frauds, section 18. The complaint does not present this theory. But even if it did, the plight of the plaintiff would not be improved. According to the testimony, Joe Allsbrook did not put the so-called \u201cspecial account\u201d or any other effects in the hands of the defendant for the specific purpose of paying his debts. He entrusted his funds and property to defendant to the end that defendant, acting as his agent, might carry on his business.\nThe considerations stated require an affirmance of the compulsory judgment of nonsuit. It is so ordered.\nJudgment affirmed.", "type": "majority", "author": "ERVIN, J." } ], "attorneys": [ "Felix L. Webster and H. Bryce Parker for plaintiff, appellant.", "Deal & Hutchins, Weston P. Hatfield, and Wade II. Dickens for defendant, appellee." ], "corrections": "", "head_matter": "C. W. MYERS v. S. W. ALLSBROOK.\n(Filed 4 February, 1949.)\n1. Pleadings \u00a7 3a\u2014\nThe right to recover is determined by the allegations of the complaint.\n2. Contracts \u00a7 5\u2014\nForbearance to exercise legal rights is sufficient consideration for a promise given to secure such forbearance even though the forbearance is in respect to the liability of a third person rather than that of the promisor.\n3. Frauds, Statute of, \u00a7 5\u2014\nThe fact that the promise to answer for the debt or default of another is supported by consideration does not take such promise out of the statute of frauds when the original obligation is not extinguished by the new promise and the consideration for the promise moves to the original debtor and not to the promisor.\n4. Same\u2014Complaint held not to allege that consideration for promise moved to promisor and nonsuit was proper.\nThe evidence ivas to the effect that a check given by an automobile retailer to plaintiff in payment of a car -was returned unpaid, that plaintiff went to the debtor\u2019s place of business and that defendant, who was the debtor's brother, and who was handling the business during debtor\u2019s illness, told plaintiff to redeposit the cheek in about two weeks and that If it were not then paid by the bank lie would send plaintiff a cashier\u2019s check for part and a personal check for the balance. It was alleged that after the debtor\u2019s death the defendant and two others purchased the business, but it was not alleged that at the time of the promise defendant contemplated purchasing the business or any interest therein. Held: While the evidence is sufficient to justify a finding that defendant personally promised to pay the check if his brother\u2019s funds were insufficient, and plaintiff\u2019s forbearance to take any action on the check for a period of two weeks was sufficient consideration for the promise, there is no allegation that the defendant made the promise to obtain any personal advantage from such forbearance, and therefore the jiromise comes within the statute of frauds, G.S. 22-1, and defendant\u2019s motion to nonsuit was properly allowed.\n5. Same\u2014\nWhile the statute of frauds does not apply to an oral promise to pay the debt of another out of money or property which the debtor has placed in the hands of the promisor for the purpose of paying the debt, evidence tending to show that the debtor entrusted certain funds to the promisor for the purpose of carrying on the debtor\u2019s business, without evidence that he entrusted the funds for the specific purpose of paying debtor\u2019s debts, is insufficient to bring the promise within this rule.\nAppeal by plaintiff from Edmitndson, Special Judge, at April Term, 1948, of Forsyth.\nThe complaint stated a cause of action against the defendant for breach of a contract to pay the plaintiff a check for $4,175 originally issued to plaintiff by a third person, Joe Allsbrook, trading as \u201cCity Auto Service.\u201d The answer denied the making of the contract; and specifically pleaded the statute of frauds as contained in G.S. 22-1 as a defense.\nTo sustain the complaint, the plaintiff presented testimony tending to establish the matters set out below.\nBefore the events giving rise to this litigation, the plaintiff, C. W. Myers, a wholesaler of motor vehicles at Winston-Salem, North Carolina, had many business dealings with Joe Allsbrook, who retailed automobiles and automobile accessories and supplies in Scotland Neck, North Carolina, under the assumed name of \u201cCity Auto Service.\u201d\nOn 26 April, 1947, the plaintiff sold Joe Allsbrook a Dodge for $2,275 and a Chevrolet and a Ford for $4,175, taking therefor separate checks for such sums drawn by Joe Allsbrook in his trade name of \u201cCity Auto Service\u201d on the Bank of Halifax at Scotland Neck. It was expressly agreed that the sale of the Chevrolet and Ford was a cash transaction, but on 14 May, 1947, the check for $4,175 covering the sale price of those cars was returned to the plaintiff \u201cunpaid.\u201d About the same time, the plaintiff learned that the Bank of Halifax had declined to honor the check for $2,275.\nOn 16 May, 1947, plaintiff went to Scotland Neck \u201cto try to get either the money or the cars back.\u201d Upon arrival there, he ascertained that Joe Allsbrook was seriously ill in a hospital, and that his brother, S. W. Allsbrook, the defendant herein, was actively managing the business of \u201cCity Auto Service\u201d for Joe Allsbrook \u201cwhile he was away.\u201d\nThe plaintiff did not find any of the vehicles he had sold to Joe Alls-brook. He was informed by defendant, however, that \u201cone of the cars had been sold a day or two before\u201d and \u201cthe money was deposited in the bank.\u201d\nDefendant advised plaintiff that he \u201cwas looking after the business for his brother,\u201d who was in \u201cbad shape,\u201d and that he would pay the $2,275 check immediately, if the plaintiff had it with him. The defendant offered to sell the plaintiff \u201ctires or batteries or anything he had there to pay the $4,175 check that day,\u201d but the plaintiff did not avail himself of this proposition.\nUpon being apprised that the $2,275 check was in transit unpaid between the Bank of Halifax and the plaintiff\u2019s bank in Winston-Salem, the defendant told the plaintiff \u201cto return such check and it would be paid\u201d at once. He asked plaintiff to put the check for $4,175 \u201cback in the bank in about two weeks\u201d and assured plaintiff \u201cthat when the $4,175 check came in . . . he\u2019d pay all of it or he\u2019d send plaintiff a cashier\u2019s check for part of it and a personal check wrote on the special account for the rest of it.\u201d The defendant showed the plaintiff a \u201cbank statement, where he had about sixteen or seventeen thousand dollars at the time, but said that was on a special account.\u201d\nThe defendant called the Bank of Halifax by telephone and told the officers of the bank in the presence of plaintiff to pay the $2,275 check immediately upon its return, and to pay the $4,175 check in full when it was again presented \u201cif the money was in there to pay the whole check.\u201d\nThe defendant told the plaintiff that he \u201cowned two or three good farms, and ten or twelve houses in Scotland Neck\u201d and said: \u201cDon\u2019t worry about that $4,175 check. I will personally see that that is paid.\u201d\nAll communications and transactions between plaintiff and defendant were oral.\nThe check for $2,275 was duly paid on its second presentation to the Bank of Halifax. Plaintiff held the $4,175 check for \u201cten days or two weeks and had it deposited again for collection.\u201d On 31 May, 1947, it was returned to plaintiff unpaid the second time.\nThe drawer, Joe Allsbrook, died 6 June, 1947, and thereafter plaintiff filed a verified claim for the amount of the $4,175 check with the administrator. But the plaintiff has \u201cnever received anything from anybody on the check.\u201d Subsequent to the death of Joe Allsbrook, the defendant and two other persons purchased from his administrator the business known as \u201cCity Auto Service.\u201d\nIn addition to the evidence stated above, the plaintiff gave this testimony: \u201cMr. Allsbrook told me that he and his brother and some other gentlemen had signed a note for $25,000 at the bank.\u201d The record does not explain the relation of this particular evidence to the controversy. Counsel for plaintiff indulge in the speculation that it reveals the source of the \u201cspecial account\u201d mentioned at the trial. No reference is made to the note or to anything connected therewith in any of the pleadings.\nThe legal battle between the parties on the trial was waged around the question as to the effect of the evidence, the defendant contending that in any event it was not sufficient, under the statute of frauds, to bind him. The court was of this view, and entered a compulsory judgment of nonsuit under G.S. 1-183 at the close of plaintiff\u2019s evidence. The plaintiff excepted to this ruling, and appealed.\nFelix L. Webster and H. Bryce Parker for plaintiff, appellant.\nDeal & Hutchins, Weston P. Hatfield, and Wade II. Dickens for defendant, appellee." }, "file_name": "0786-01", "first_page_order": 840, "last_page_order": 846 }