37 S.E.2d 676 | N.C. | 1946
Civil action to recover one-half cost of digging well on land leased and optioned by plaintiff to defendant, which the defendant later purchased by exercising option.
On 24 October, 1934, the plaintiff and his wife leased to the defendant a lot for a filling station on the Kannapolis-Concord Highway for a term of ten years with privilege of buying at any time during the term of the lease at a price of $5,000. The lease contained the following stipulation: "Said Stonestreet and wife agree to furnish Lessee with water for the station insofar as they are able to do so with their present water supply. In case said Lessor's well fails to supply ample water, they are not to be responsible, and the Lessee will be required to make their own arrangements for securing water." *262
In June, 1935, the lessee needed more water; whereupon plaintiff and defendant engaged C.W. Fisher to drill a well on the premises, each agreeing to pay one-half the cost. The Southern Oil Company paid its half, amounting to $329.00, and the plaintiff credited Fisher with a like amount on his grocery bill.
It is alleged that at the time C.W. Fisher was engaged to drill the well, under a written contract signed by all the parties, it was further agreed orally between plaintiff and defendant that if the lessee exercised its option to buy the premises the defendant "would repay the plaintiff his one-half paid for boring said well, but if the defendant did not exercise the option to buy, then the well would belong to plaintiff and he would not be reimbursed the one-half he had paid."
The defendant denied the alleged oral agreement, and pleaded the statute of frauds, satisfaction by the deed of conveyance, and no consideration for the alleged oral agreement to reimburse the plaintiff.
On cross-examination, the plaintiff testified as follows:
"While they were digging the well Mr. Brinson (defendant's representative) came down and talked to me and promised me, in the event he took the property under the option in the lease to pay me back whatever I put into it. He promised to pay me back the $329.00 if he exercised the option. I did not give him anything in money, or property, or make any promises in return for his promise to pay me back my one-half the cost of digging the well. I did not promise him any money, didn't give him any money, I didn't think I had to. I thought he was an honest man."
There was a verdict and judgment for plaintiff, from which the defendant appeals, assigning errors.
Passing the initial pleas of the statute of frauds and satisfaction by the deed of conveyance when the defendant exercised its option, it would seem that under the facts appearing of record as distinguished from the allegations of the complaint, the defendant's plea of no consideration has been made out and constitutes a bar to the plaintiff's case. Craig v.Price,
It may be stated as a general rule that "consideration" in the sense the term is used in legal parlance, as affecting the enforceability of simple contracts, consists of some benefit or advantage to the promisor, or of some loss or detriment to the promise. Exum v. Lynch, *263
It is said that when one receives a naked promise and such promise is not kept, he is no worse off than he was before the promise was made. He gave nothing for it, loses nothing by it, and upon its breach he suffers no recoverable damage. Mitchell v. Bell,
In the instant case the promise on the part of the defendant to reimburse the plaintiff "his one-half paid for boring said well" was no more than a gratuity. Plaintiff promised nothing and gave nothing in return for the defendant's promise. Wooten v. Drug Co.,
The motion for judgment of nonsuit was well interposed.
Reversed. *264
