note drawn up by defendant, signed by plaintiff, not sufficient to satisfy statute of frauds because it did not obligate defendant to perform
How later courts described this case
- note drawn up by defendant, signed by plaintiff, not sufficient to satisfy statute of frauds because it did not obligate defendant to perform
Written by the judges who cited it.
The opinion
The defendant's exceptions, save one or two of them, have been decided favorably to him in the plaintiff's appeal. He makes no objection to the judgment for the $130 and interest, but contends, and prayed the court to so instruct the jury, that the note under seal for $200, given by him to the plaintiff in settlement of their differences, was without consideration. But a bond does not require a consideration, as the seal imports one. It was so held in Harrell v. Watson , 63 N.C. 454 , where the same defense was pleaded to an action upon a sealed note. In that case it was said by Chief Justice Pearson: "He (defendant) says the bond is void for want of a consideration. The reply is: A bond needs no consideration. The solemn act of sealing and delivering is a deed, a thing done , which, by the rule of the common law, has full force and effect without any consideration. Nudum pactum applies only to *Page 575
simple contracts; deeds need no consideration, except such as take effect under the doctrine of uses, or such as are made void by the statutes of Elizabeth as against creditors and purchasers for valuable consideration, but are valid, as at common law, between the parties."
Besides, it appears that the parties in good faith came to a settlement of their dispute as to their rights. Plaintiff thought he had a "bond for title," but could not find it. The death of the widow had made the "dower tract," as it was called, more valuable, and defendant wished to settle the matter, and made the first offer to do so. The settlement was a distinct advantage to defendant, as it removed an apparent cloud from his title.
In Mayo v. Gardner , 49 N.C. 359 , this Court said, by Chief Justice Nash: "In re Lucy , 21 Eng. Law and Eq., 199, it was decided that, to sustain a compromise, it was sufficient if the parties (663) thought, at the time of entering into it, that there was a bona fide
(or real) question between them, though in fact there was no such question." The law favors the settlement of disputes, as was said in that case. It is stated in 9 Cyc., 345, that "the compromise of a disputed claim may uphold a promise, although the demand was unfounded," citing numerous cases in the notes to sustain the text.
The settlement between the parties was also a bar to plaintiff's recovery in this action, of which the defendant has had the benefit. He avers in his answer that it was fair and free from any fraud or mistake, and made voluntarily by the parties and for their mutual benefit, and it should be binding and conclusive as to both of them. It, therefore, formed a good consideration for the note, if it required one, being under seal. Clark on Contracts (2 Ed.), 132.
No error.
Cited: Peyton v. Shoe Co. , 167 N.C. 283 (2g); Flowe v. Hartwick , 167 N.C. 451 (1b); Peace v. Edwards , 170 N.C. 66 (1p); Woodruff v. Trust Co. , 173 N.C. 548 (1b); Lewis v. Murray , 177 N.C. 21
(1b); Kendall v. Realty Co. , 183 N.C. 426 (1p); Keith v. Bailey , 185 N.C. 263 (1g); Beck v. Wilkins-Ricks Co. , 186 N.C. 213 (2g); McCall v. Institute , 187 N.C. 761 (1b); S. v. Abernethy , 190 N.C. 770
(1p); Cowen v. Williams , 197 N.C. 433 (2g); Corp. Com. v. Wilkinson , 201 N.C. 348 (1g); Patterson v. Fuller , 203 N.C. 791 (2l); Smith v. Joyce , 214 N.C. 605 (1g); Paul v. Davenport , 217 N.C. 157 (1p); Chason v. Marley , 223 N.C. 740 (1p); Harvey v. Linker , 226 N.C. 713 (1g). *Page 576