Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-06-09
COURT DECISIONS.
DIGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
VIRciNIAN-PILOT.
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
HALL V. FISHER.

supreme Court OF North Carolina.
March 20, 1900.
y PAROL AGREEMENT BY A VEN
DOR 10 OPEN a STREET ON
LAND NOT OWNED BY HIM is
WITHIN THE STATUTE OF
FRAUDS, AND a SUIT FOR DAM
AGE FOR IT'S BREACH WILL NOT
LIE.
Plaintiff alleged that he sold defend
ant house and lot on Clay street. in
Greensboro, FOR 81, 600 and took in part
payment therefor Il vacant lot on
Waihman street at 5000. That defend
ant promised and agreed with plaintiff
TO open Wainman street beyond the va
cant lot sold plaintiff to Green street.
nut had not done SO. That he bought
TINS lot for the express purpose OF
building Il residence on it, and this Wa
known 10 the defendant; that. suppos-
ing defendant would open Wainman
street as he agreed to do the plaintiff
proceeded 10 build on said lot a resi-
dencc worth Sl,700; that defendant has
failed to open said street, and now de-
clincS and refuses to do so whereby
plaintiff has been damaged 81 .o00.. The
jury found that defendant did contract
with plaintiff TO open said street. and
assessed plaintiffs damage at 81 900.
The court says:
Inc defendant among other things
pleaded and relied on the statute of
frauds. and it seems to us that this
plea and defense dispose of the case.
The salute of frauds does not apply to
executed, but only to exccutory con-
tracts. This contract was executed so
far ati 1t affected the property on Clay
street ana the vacant lot on SChenk
ana Wainman streets, and has no effect
as to them. But it was contended-in
| fact. il is admttel-that neither of the
| deeds conveying these properties pro-
| vided for opening Wainman street, and
! that there was no writing or written
memorandum as to that. To make an
| eNccUtory. unwrtten contract binding
| there must be a consideration to sup
port it, or 1t Will be NAKED contract
nudur- pactun. If it is Il contract TO
do somehinS, it must be some thing the
contracting party can do. and it must
be something that IL is lawful for him
to do. 1t must also not be in violation
Of law or public policy. In this case it
was known to the plaintiff that the de-
| ferdant did not own the land over
| which this street would run If opened to
| Green street, as the plaintiff contends
| II was to do and it would seem that
| this would relieve the defendant from
| such a contract. But suppose it he
said that the defendant could have
| bought the right of way with money
| titouSH, as WAS COHlenutQ Oh the ITSu-
| ment. But to open n public street in Il
! city it must have the approval OF the
| city authorities. who are to provide for
keeping 1t up; and 1t would hardly be
contcndcd that the defendant could
| have bought them with enough
money" or that he could have done so
at any price. But the plaintiff con-
tends. and so states in his complaint
that this was a part of the considera-
! tion he was 10 receive for house and
lot on Clay street; that he took the va
cant lot. which was conveyed to him by
deed. ana the verbal promise of the de-
PENDANT that he would open Wainman
street; and, If this he so. he cannot en-
force this agreement. because IL is a
part OF the price-the consid ration for
the land--Without any written contract
| or memorandum signed b. the defend
ant. or BY any one authorized TO bind
him. ana is barred by the statute of
| frauds. We are therefore OF the opinion
| that. If the defendant did make the
| contract to open Wainman street. as
alleged 10 the plaintiffs complaint. he
cannot be forced to do so. nor can he
be held liable in damages for not doing