Opinion
December Term, 1826.
From Buncombe.
A having contracted to build a house for B, and the work not being finished within the time fixed by the contract, afterwards sold, without the consent of B, his interest in the house: Held, that nothing passed to the purchaser, and therefore his promise to pay was nudum pactum.
ASSUMPSIT. The declaration contained a count for work and labor done, and also a special count stating, in substance, that the plaintiff had contracted with one Jason W. Wilson to build a house upon this land, and the house not being entirely finished within the time specified in the contract, it was agreed between the plaintiff and defendant that the latter should take the house in its unfinished state, for the price agreed to be paid by (81) Wilson, deducting therefrom the value of the work remaining to be done. The breach alleged was the failure by the defendant to pay the money.
No counsel for the plaintiff.
Gaston for the appellant.
On the trial before Daniel, Judge, the contract was proved as stated, and it was also shown that the defendant, who was the brother-in-law of Wilson, lived two miles from the site of the house, and that the land on which it was situate was, after the contract stated in the declaration, sold to one John Carson, a brother of the defendant. It was also in proof that a chimney to the house was finished by the defendant, but whether before or after John Carson's purchase of the land did not appear; and that the defendant had rented out the land as the agent of his brother. At the time of the trial an action was pending, brought by Wilson against the plaintiff, for his failure to build the house according to the original agreement.
The case was left to the jury without any instruction, none being asked by the counsel, and a verdict being found for the plaintiff, a motion was made for a new trial and denied, whereupon the defendant appealed.
It appears in this case that the plaintiff covenanted with Jason H. Wilson to build a house on the land of Wilson for a certain sum of money; that when he had nearly completed the work he sold the house to the defendant for the same sum, deducting therefrom the value of the work remaining to be done. To this contract it does not appear that the assent of Wilson was given. The plaintiff's demand, then, is founded on a promise made by the defendant to pay a sum of money for property to which the plaintiff had no right, and of which, of course, he could not dispose. (82)
But it further appears that the defendant is the brother-in-law of Wilson, and that Wilson, after the agreement between the plaintiff and defendant, sold the house to John Carson, the defendant's brother; it further appears that part of the chimney was built to the house by the defendant, who rented it out for John Carson, but whether it was built before John Carson purchased it or afterwards does not appear.
It is very probable from these circumstances that the matter was well understood by the brotherhood, and that the defendant's agency in purchasing the house was approved of by Wilson, and that they acted in the transaction with one mind; but that they did so has not been made to appear. It may have been otherwise, but it is too much to guess at. I therefore think that the defendant's promise was made without consideration, and that the judgment ought to be arrested.
Judgment arrested.