Gribble v. Gribble, 25 N.C. App. 366

25 N.C. App. 366 | N.C. Ct. App. | 1975

PARKER, Judge.

In general, an unfulfilled promise will not support an action for fraud. If, however, at the time the promise is made the promisor has no intention to perform and the promisee reasonably relies on the promise to act to his injury, the promise may constitute a misrepresentation of a material fact such as to support an action for fraud. This is so because the state of mind of the promisor is a subsisting fact which has been falsely represented. Gadsden v. Johnson, 261 N.C. 743, 136 S.E. 2d 74 (1964) ; Davis v. Davis, 236 N.C. 208, 72 S.E. 2d 414 (1952). Plaintiffs here have alleged such a case. The question is whether they have supported their allegations with competent evidence.

No evidence was offered to show that defendant herself made any promise or representation whatever, and, apart from the tendered but excluded testimony of plaintiff Fred Gribble concerning conversations with defendant’s deceased husband, there was no evidence to show that at the time plaintiffs executed their deed, defendant’s husband fraudulently misrepresented his intention as to building a house and residing upon the property. Thus, the question presented by this appeal becomes narrowed to whether plaintiff Fred Gribble’s testimony was properly excluded. We hold that it was.

Insofar as pertinent to this appeal, G.S. 8-51 provides that “ [u] pon the trial of an action ... a party . . . shall not be examined as a witness in his own behalf or interest . . . against the executor, administrator or survivor of a deceased person . . . or a person deriving his title or interest from, through or under a deceased person ... by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person. ...” The estate of defendant’s deceased husband is not a party to this action, and this action is not against the executor or administrator of a deceased person. Nor does defendant derive her title “from, through or under” her deceased husband; her title comes directly from plaintiffs. She is, however, a surviving tenant by the entirety and we hold that as such she is the “survivor of a deceased person” within the meaning of G.S. 8-51 in an action, such as the present one, which attacks the validity of the deed by which the tenancy by the entirety was created. We hold, therefore, that G.S. 8-51 applied and operated to exclude testimony by plaintiff Fred Gribble concerning any personal transactions or communications between him and defendant’s deceased husband in plaintiffs’ equitable action to rescind the deed for fraud.

Plaintiffs’ alternative claim for relief to recover damages for breach of contract rests upon their allegations that defendant and her husband contracted with plaintiffs to build a house, reside on the land, and render assistance to plaintiffs, that they failed to perform these agreements, and that plaintiffs are entitled to recover damages resulting from the breach. As above noted, there was no evidence that defendant herself promised anything or made any agreement with plaintiffs other than as contained in the $15,000.00 purchase money note and deed of trust which she signed. Plaintiffs alleged that defendant “was well aware of the negotiations, promises and persuasions made by Perry E. Gribble on behalf of himself and his wife to plaintiffs,” and apparently plaintiffs hoped to recover from defendant on the theory that her deceased husband acted not only for himself but as agent for her. If so, G.S. 8-51 still operates to exclude testimony by plaintiffs concerning any personal transactions or communications between them and the deceased agent. Although our Supreme Court has held that G.S. 8-51 does not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent, “this rule has been applied only in factual situations where the deceased agent was not personally liable in respect of the alleged cause of action.” Thorpe v. Newman, 257 N.C. 71, 76, 125 S.E. 2d 315, 319 (1962). Here, plaintiffs’ claim for damages for breach of contract was based entirely upon the theory that defendant’s deceased husband, allegedly her agent, was personally .liable in respect to the alleged cause of action.

We hold, therefore, that G.S. 8-51 was applicable both to plaintiffs’ alleged claim for damages for breach of contract as well as to their claim for rescission of the deed for fraud. Examination of the record discloses that the trial judge correctly applied the statute in each instance in which objections by defendant’s counsel to questions directed to plaintiff Fred Gribble were sustained, and plaintiffs’ assignments of error directed to application of the statute are overruled.

We also find that defendant’s motion for a directed verdict was properly allowed. The testimony of independent witnesses that on various occasions after plaintiffs had executed the deed to Perry Gribble and the defendant, Perry had stated that he intended to build a home on the property and “was going to move up there to where he could be handy to help Fred out” and that he was going to “take care of Uncle Fred and Aunt Dessie,” falls short of showing a binding contract to do so. Furthermore, the evidence shows a family relationship, not a fiduciary one, and a family relationship does not raise a presumption of fraud or undue influence. Davis v. Davis, supra; Cornatzer v. Nicks, 14 N.C. App. 152, 187 S.E. 2d 385 (1972), cert. denied, 281 N.C. 154, 188 S.E. 2d 365 (1972).

The judgment appealed from is

Affirmed.

Judges Morris and Hedrick concur.