Stonestreet v. Southern Oil Co.

37 S.E.2d 676, 226 N.C. 261, 1946 N.C. LEXIS 426

• Court: Supreme Court of North Carolina
• Decided: April 10, 1946
• Status: Published

Opinion

Stacy, C. J.

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, 210 N. C., 739, 188 S. E., 321; Williams v. Chevrolet Co., 209 N. C., 29, 182 S. E., 719; Hatchett v. Odom, 19 N. C., 302.

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 promisee. Exum v. Lynch, 188 N. C., 392, 125 S. E., 15; Cherokee County v. Meroney, 173 N. C., 653, 92 S. E., 616; Institute v. Mebane, 165 N. C., 644, 81 S. E., 1020; Findly v. Ray, 50 N. C., 125. It bas been, beld that “there is a consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not.” 17 C. J. S., 426; Spencer v. Bynum, 169 N. C., 119, 85 S. E., 216; Basketeria Stores v. Indemnity Co., 204 N. C., 537, 168 S. E., 822; Grubb v. Motor Co., 209 N. C., 88, 182 S. E., 730, and cases, cited. On the other hand, a mere promise, without more, lacks a consideration and is unenforceable. 17 C. J. S., 434-435.

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, 1 N. C., 244, 2 Am. Dec., 627; Sweany v. Hunter, 5 N. C., 180; Johnson v. Johnson, 10 N. C., 556; 12 Am. Jur., 564. For example, “A” promises to give “B” a horse at Christmastime, or to leave him a legacy in his will, and does neither. There being no consideration for the promise, “B” would have no cause of action against “A” or his estate. Medlock v. Powell, 96 N. C., 499, 2 S. E., 149; Broaddus v. Bank, 161 Md., 116, 155 Atl., 309; In re Fisher’s Estate, 128 Or., 415, 274 Pac., 1098; 17 C. J. S., 432. A bare promise, made without consideration, creates no legal rights and imposes no legal obligations. Its fulfillment is a matter of grace or favor on the part of the one making the promise. Picot v. Sanderson, 12 N. C., 309. In this connection, see Ritchie v. White, 225 N. C., 450.

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., 169 N. C., 64, 85 S. E., 140. The agreement to dig the well was in writing and its terms stated. The defendant, therefore, acquired by the exercise of its option exactly what it would have acquired had the promise of reimbursement not been given. The plaintiff lost nothing by the promise. His rights and obligations were fixed and determined by the written instruments. Cf. Critcher v. Watson, 146 N. C., 150, 59 S. E., 544, 18 L. R. A. (N. S.), 270, 125 Am. St. Rep., 470. The promise, if made, was without consideration to enforce it. Building & Loan Asso. v. Swaim, 198 N. C., 14, 150 S. E., 58. It seems that plaintiff trusted “to the mere gratuitous promise of favor from another.” Hardison v. Reel, 154 N. C., 273, 70 S. E., 463; Mitchell v. Bell, supra.

The motion for judgment of nonsuit was well interposed.

Reversed.