Montague v. Womble

148 S.E.2d 255 (1966)

267 N.C. 360

Hubert MONTAGUE and Harvey Montague, d/b/a Montague Building Company, v. C. T. WOMBLE.

No. 530.

Supreme Court of North Carolina.

May 25, 1966.

*256 Bailey, Dixon & Wooten, by, Wright T. Dixon, Jr., Raleigh, for plaintiff appellees.

Crisp, Twiggs & Wells, by Hugh A. Wells, Raleigh, for defendant appellant.

HIGGINS, Justice.

As stated in the complaint, the cause of action rests solely on: (1) the execution and delivery of a check for $5,000.00; and (2) the failure of the check to clear the bank when presented. The complaint does not allege the check was based on any valuable consideration, or in discharge of any debt *257 or obligation the defendant owed the plaintiffs.

The defendant did not challenge the sufficiency of the complaint to state a cause of action in the Superior Court; nor does he do so here. He does allege, however, (1) the check was without consideration; (2) that he is not justly indebted to the plaintiffs in any amount; (3) that the parties carried on negotiations entirely in parol with respect to the purchase by the defendant of a lot on which a house was under construction. The defendant gave the check as an advance payment during the negotiations which failed to culminate in a binding contract in that no written agreement or memorandum was executed or signed by either of the parties. The defendant never received any consideration whatever for the check. The plaintiffs have never conveyed the property or any property rights whatever to the defendant. In fact, the plaintiffs have sold and conveyed the house and lot to another purchaser. This they admit.

The plaintiffs' evidence in essence established the foregoing. The plaintiffs admit that all negotiations were in parol; that no contract or writing was ever signed by the defendant. They admit they have sold and conveyed the house to another. They do not claim they sold at a loss or that they suffered any damage whatever as a result of their having negotiated orally with the defendant.

In short, the plaintiffs ask the Court to order the check paid without ascertaining whether any part of it is justly due. The plaintiffs' own evidence established the defense that the check was without consideration. It was not a gift. It was not a loan. It was not in payment of any legally binding obligation. It was given in anticipation of what would be a credit on the purchase price of a house, the deal for which was never consummated. The contract and all its parts were void under the statute of frauds. Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723; Culp v. Love, 127 N.C. 457, 37 S.E. 476. The plaintiffs' own evidence established the defendant's plea in bar. The court should have sustained the plea. Instead, it rendered judgment for the plaintiffs for the full amount of the check based on a single issue which the jury answered for the plaintiffs under peremptory instructions from the court. The judgment is

Reversed.

MOORE, J., not sitting.