Davis v. Davis

72 S.E.2d 414 (1952)

236 N.C. 208

DAVIS v. DAVIS et al.

No. 101.

Supreme Court of North Carolina.

September 24, 1952.

*415 Clyde M. Roberts and Calvin R. Edney, Marshall, for plaintiff, appellant.

J. M. Baley, Jr., and Charles E. Mashburn, Marshall, for defendants, appellees.

DENNY, Justice.

It is the general rule that an unfulfilled promise cannot be made the basis for an action for fraud. Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364; Shoffner v. Thompson, 197 N.C. 664, 150 S.E. 195; Planters' Bank & Trust Co. v. Yelverton, 185 N.C. 314, 117 S.E. 299; Pritchard v. Dailey, 168 N.C. 330, 84 S.E. 392; 23 Am.Jur., Fraud and Deceit, section 38, page 799 et seq. The rule, of course, is otherwise, where the promise is made fraudulently with no intention to carry it out, and such promise constitutes a misrepresentation of a material fact which induces the promisee to act upon it to his injury. Williams v. Williams, supra.

*416 The evidence of the plaintiff, however, is not sufficient to show that J. L. Davis and wife, Josie Davis, had no intention of supporting the plaintiff at the time the agreement for support was entered into. The defendants had lived in the plaintiff's home approximately 7 years before the deed was executed, and plaintiff had lived with the defendants for more than five years thereafter before any serious controversy arose with respect to the plaintiff's support. Moreover, the plaintiff made it clear that he would not have instituted this action if his son had sent him the $50 (apparently an amount he had requested) for food and clothes, and he and his wife had not conveyed the premises in question to their minor son.

The plaintiff insists that a confidential relationship existed between the adult defendants and the plaintiff which raised the presumption of fraud and entitled him to go to the jury, irrespective of any other evidence. The contention is untenable. This action does not involve a fiduciary relationship as was the case in McNeill v. McNeill, 223 N.C. 178, 25 S.E.2d 615. Here, we are dealing with a parent and his son and daughter-in-law. It is a family relationship, not a fiduciary one, and such relationship does not raise a presumption of fraud or undue influence. Gerringer v. Gerringer, 223 N.C. 818, 28 S.E.2d 501; In re Craven, 169 N.C. 561, 86 S.E. 587.

Likewise, the allegation in the complaint to the effect that the deed was executed and delivered without consideration is negatived by the plaintiff's own testimony. At the time of its execution, the plaintiff received the equivalent of $1,300 and the promise of support. The latter promise alone was sufficient consideration for the transfer of the property. Minor v. Minor, 232 N.C. 669, 62 S.E.2d 60; Lee v. Ledbetter, 229 N.C. 330, 49 S.E.2d 634; Ayers v. Banks, 201 N.C. 811, 161 S.E. 550; Salms v. Martin, 63 N.C. 608.

The plaintiff excepts to the exclusion of certain evidence purporting to be statements made by the plaintiff prior to the execution of the deed involved herein. The exception will not be upheld.

A careful consideration of all the evidence disclosed by the record, when considered in the light most favorable to the plaintiff, at most, shows only a breach of contract for support. Gerringer v. Gerringer, supra. The evidence is clearly insufficient to warrant the submission of an issue to the jury on the question of fraud, undue influence, or lack of consideration.

The judgment of the court below is Affirmed.