Effler v. Pyles

380 S.E.2d 149 (1989)

Mozelle Lee EFFLER v. Richard D. PYLES and Linda L. Pyles.

No. 8811SC891.

Court of Appeals of North Carolina.

June 20, 1989.

*151 Staton, Perkinson, Doster & Post by Norman C. Post, Jr., Sanford, for plaintiff appellee-appellant.

J. Douglas Moretz, Sanford, for defendant appellant-appellees.

WELLS, Judge.

I. DEFENDANT'S APPEAL

Defendant Richard Pyles (hereinafter defendant) assigns error to the trial court for allowing testimony of oral communications concerning his promise to pay Shirley Pyles' debt to plaintiff. N.C.Gen. Stat. § 22-1 (1986) provides:

No action shall be brought whereby to charge an executor, administrator or collector upon a special promise to answer damages out of his own estate or 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.

This rule is subject to the well-established main purpose rule, however, which provides that "the promise to pay the debt of another is outside the statute and enforceable if the promise is supported by an independent and sufficient consideration running to the promissor." McKenzie Supply Co. v. Motel Development Unit 2, 32 N.C.App. 199, 231 S.E.2d 201 (1977). "`Generally, if it is concluded that the promissor [sic] has the requisite personal, immediate, and pecuniary interest in the transaction in which a third party is the primary obligor, then the promise is said to be original rather than collateral and therefore need not be in writing to be binding.'" Id. (quoting Burlington Industries v. Foil, 284 N.C. 740, 202 S.E.2d 591 (1974)).

Defendant promised plaintiff that he would make all of the monthly payments on the mortgage note; he made the agreement directly with plaintiff, rather than solely with Shirley Pyles to pay off her debt to her mother. Defendant's promise to plaintiff, furthermore, was supported by independent consideration: plaintiff pledged her own residence as collateral and obtained for defendant a $25,000.00 loan. We hold that this constituted an original promise, and therefore was not subject to the writing requirement. The trial court correctly allowed the testimony regarding defendant's oral promise to plaintiff.

Defendant also assigns error to the trial court's refusal to grant him a directed verdict. In evaluating a defendant's motion for directed verdict, the plaintiff's evidence must be taken as true and all evidence considered in the light most favorable to the plaintiff. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). A directed verdict is proper only if it appears as a matter of law that the evidence is insufficient to support a verdict for plaintiff. Farmer v. Chaney, 292 N.C. 451, 233 S.E.2d 582 (1977). Plaintiff's evidence was sufficient to permit the jury to find that she and defendant entered a contract wherein she agreed to obtain a loan on his behalf in exchange for his promise to repay the loan, and that defendant breached that agreement. We overrule this assignment of error.

Defendant brought forth additional assignments of error but conceded at oral argument that they lacked merit. We do not address these arguments. Defendant also conceded in his brief that an assignment of error regarding the trial court's instructions to the jury would be relevant only if this Court ordered a new trial. Because of our disposition of this appeal we do not consider this assignment of error.

*152 II. PLAINTIFF'S APPEAL

Plaintiff appeals from the entry of summary judgment in favor of defendant Linda Pyles. Plaintiff contends that Linda Pyles was unjustly enriched by the receipt of title to the two properties, and that she diverted to herself the sale proceeds of the Charlotte Avenue property, which she knew were due to plaintiff. "In order to establish a claim for unjust enrichment, a party must have conferred a benefit on the other party [and] the defendant must have consciously accepted the benefit." Booe v. Shadrick, 322 N.C. 567, 369 S.E.2d 554 (1988).

Plaintiff has not shown that she conferred a benefit on defendant Linda Pyles. Linda Pyles received title to the property through her husband. Although he had previously acquired his interest in this property with plaintiff's assistance, this does not satisfy plaintiff's burden of showing that she conferred a benefit directly on defendant Linda Pyles. The trial court did not err in entering summary judgment for this defendant.

As to defendant Richard Pyles,

No error.

As to defendant Linda Pyles,

Affirmed.

HEDRICK, C.J., and EAGLES, J., concur.