Brown v. . Benton

183 S.E. 292, 209 N.C. 285, 1936 N.C. LEXIS 456

• Court: Supreme Court of North Carolina
• Decided: January 22, 1936
• Status: Published

Opinion

Stacy, C. J.

Appellants in tbeir brief seek to avoid liability on the ground that the contract alleged to have been breached is a collateral agreement, resting in parol, and therefore not enforceable under the statute of frauds. C. S., 987. All the evidence is to the contrary. Newbern v. Fisher, 198 N. C., 385, 151 S. E., 875.

Plaintiff has declared upon an original promise not within the statute of frauds. Dozier v. Wood, 208 N. C., 414; Peele v. Powell, 156 N. C., 553, 73 S. E., 234, on rehearing, 161 N. C., 50, 76 S. E., 698; Sheppard v. Newton, 139 N. C., 533, 52 S. E., 143.

The only point mooted on trial was whether the promise of the defendants went beyond the first car of lumber and included the second. The jury found that it did. This was an issue of fact determinable alone by the twelve.

The defendant Finley resists recovery on the ground that he was not present when the second car was ordered, and that Benton was not authorized to speak for him at that time. The jury found, however, under proper instructions, that the original authorization, given by both of the individual defendants, was sufficient to cover the second as well as the first car.

The record is free from reversible error, hence the verdict and judgment will be upheld.

No error.