Opinion
(Filed 6 October, 1909.)
Contracts — Debt of Another — Consideration — Independent Agreement.
A promise to the landlord made by one advancing supplies to the tenant, under a mortgage, that if the landlord would wait until the tenant finished selling the crop the promisor would give him his note for the tenant's rent payable the next fall, is an independent contract between the landlord and one furnishing the supplies, and not barred by the statute of frauds. The question whether the landlord in this case has lost his lien by not following the remedy provided under the Virginia statute, does not arise.
APPEAL by defendant from O. H. Allen, J., at May Term, 1909, of VANCE.
J. H. Bridgers for plaintiffs.
T. T. Hicks for defendants.
The facts are sufficiently stated in the opinion.
The plaintiffs own a tract of land in Virginia. Their tenant sold some of the crop, and instead of paying the proceeds on the rent paid it to the defendant, a merchant, on his store account for supplies, for which he held a mortgage.
The plaintiff testified that the defendant told him, "If you will wait till Hilliard (the tenant) finishes selling, I will give you my note for the $75, payable next fall." The Code of Virginia, sec. 2496, gives the landlord a lien "prior to all other liens" and a remedy by distress. We need not consider the question debated before us, whether the landlord's lien in that State is lost by not taking out proceedings in distress, for, according to plaintiff's evidence, the defendant promised to pay the $75 if the plaintiff would let the tenant alone till he had gathered and sold the rest of his crop. This is not a promise barred by the statute of frauds, but an independent contract upon a consideration. Whitehurst v. Hyman, 90 N.C. 490; Voorhees v. Porter, 134 N.C. 604; Deaver v. Deaver, 137 N.C. 244; Satterfield v. Kindley, 144 N.C. 461, in which last case the point is fully and clearly presented by Mr. Justice Brown.
The nonsuit must be
Reversed.
Cited: Rogers v. Lumber Co., 154 N.C. 111.
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