#### Elam M. Johnson *v.*Charles Carson.

From Bancombe.

A having contracted to build a house for E, and the work not being finished within the time fixed by the contract, afterwards sold, with., out the consent of B, his interest in the house. Held, that nothing passed to the purchaser, and therefore his promise to pay, was *nu-dum factum.*

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 bis 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 *81its Unfinished state, for the price agreed to be paid by *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.

On the trial before Daniei, Judge, the contract was proved as stated, and it was also shewn, that the Defendant, who was the brother-in-law of *Wilson,*lived two miles from the scite 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 wras 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 oiit 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 iiis failure to build the house, according to the original agreement.

The ease 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.

In this Court, no Counsel appeared for the Plaintiff, and *Gaston*for the appellant, submitted, without argument, a motion in.arrest of judgment.

The opinion of the Court was delivered by

Haix, Judge:

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 pro*82perty to which the Plaintiff had no right, and of which, of course, he could not dispose.

But it further appears, that the Defendant is the brother-in-law of Wilson, and that Wilson, after the ágreement 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 *09*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.