Mitchell v. . Mitchell

Supreme Court of North Carolina

Mitchell v. . Mitchell

174 S.E. 447, 206 N.C. 546, 1934 N.C. LEXIS 237

CourtSupreme Court of North Carolina

DecidedMay 23, 1934

StatusPublished

Cited by1 cases

This text of 174 S.E. 447 (Mitchell v. . Mitchell) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mitchell v. . Mitchell, 174 S.E. 447, 206 N.C. 546, 1934 N.C. LEXIS 237 (N.C. 1934).

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Opinion

CoNNOR, J.

In Hinsdale v. Phillips, 199 N. C., 563, 155 S. E., 238, it is said: “As a general rule, fraud as a ground for the rescission of contracts, cannot be predicated upon promissory representations, because a promise to perform an act in the future is not in legal sense a representation. Fraud, however, may he predicated upon the nonperformance of a promise, when it is shown that the promise was merely a device to accomplish the fraud. A promise not honestly made, because the promisor at the time had no intent to perform it, where the prom-isee rightfully relied upon the promise, and was induced thereby to enter into the contract, is not only a false, but also a fraudulent representation, for which the promisee, upon its nonperformance, is ordinarily entitled to a rescission of the contract. These principles have been recognized and applied by this Court in Shoffner v. Thompson, 197 N. C., 667, 150 S. E., 195; McNair v. Finance Co., 191 N. C., 710, 135 S. E., 90; Bank v. Yelverton, 185 N. C., 314, 117 S. E., 299; Pritchard v. Dailey, 168 N. C., 330, 84 S. E., 392; Hill v. Gettys, 135 N. C., 373, 47 S. E., 449, and in many other cases cited in the opinions in these cases.”

These principles are applicable in the instant ease, notwithstanding the promise of the plaintiff, as alleged in the answer, to execute and deliver to the defendant a lease for the land described in the complaint, was not in writing. C. S., 988, Investment Co. v. Zindel, 198 N. C., 109, 150 S. E., 704. The defendant is not seeking to enforce the promise, or to recover damages for its nonperformance by the plaintiff. He alleges in his answer that the promise was false and fraudulent, and in *549 effect that at the time the plaintiff made the promise and thereby induced him to execute the deed under which she claims, she did not intend to perform it. If this allegation is sustained at the trial, the defendant will be entitled to a decree that his deed is void, and that it be canceled. In Taylor v. Edmunds, 176 N. C., 325, 97 S. E., 42, it is said: “The mere fact that a grantor who can read and write signs a deed does not necessarily conclude him from showing, as between himself and the grantee, that he was induced to sign by fraud on the part of the grantee, or that he was deceived and thrown off his guard by the grantee’s false statements and assurances designedly made at the time and reasonably relied on by him.” The judgment is

Reversed.

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CoNNOR, J.

In Hinsdale v. Phillips, 199 N. C., 563, 155 S. E., 238, it is said: “As a general rule, fraud as a ground for the rescission of contracts, cannot be predicated upon promissory representations, because a promise to perform an act in the future is not in legal sense a representation. Fraud, however, may he predicated upon the nonperformance of a promise, when it is shown that the promise was merely a device to accomplish the fraud. A promise not honestly made, because the promisor at the time had no intent to perform it, where the prom-isee rightfully relied upon the promise, and was induced thereby to enter into the contract, is not only a false, but also a fraudulent representation, for which the promisee, upon its nonperformance, is ordinarily entitled to a rescission of the contract. These principles have been recognized and applied by this Court in Shoffner v. Thompson, 197 N. C., 667, 150 S. E., 195; McNair v. Finance Co., 191 N. C., 710, 135 S. E., 90; Bank v. Yelverton, 185 N. C., 314, 117 S. E., 299; Pritchard v. Dailey, 168 N. C., 330, 84 S. E., 392; Hill v. Gettys, 135 N. C., 373, 47 S. E., 449, and in many other cases cited in the opinions in these cases.”

These principles are applicable in the instant ease, notwithstanding the promise of the plaintiff, as alleged in the answer, to execute and deliver to the defendant a lease for the land described in the complaint, was not in writing. C. S., 988, Investment Co. v. Zindel, 198 N. C., 109, 150 S. E., 704. The defendant is not seeking to enforce the promise, or to recover damages for its nonperformance by the plaintiff. He alleges in his answer that the promise was false and fraudulent, and in *549 effect that at the time the plaintiff made the promise and thereby induced him to execute the deed under which she claims, she did not intend to perform it. If this allegation is sustained at the trial, the defendant will be entitled to a decree that his deed is void, and that it be canceled. In Taylor v. Edmunds, 176 N. C., 325, 97 S. E., 42, it is said: “The mere fact that a grantor who can read and write signs a deed does not necessarily conclude him from showing, as between himself and the grantee, that he was induced to sign by fraud on the part of the grantee, or that he was deceived and thrown off his guard by the grantee’s false statements and assurances designedly made at the time and reasonably relied on by him.” The judgment is

Reversed.

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174 S.E. 447, 206 N.C. 546, 1934 N.C. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-mitchell-nc-1934.

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