Court of Appeals of North Carolina, 1973

Bowling v. Hines

Bowling v. Hines
Court of Appeals of North Carolina · Decided March 28, 1973 · Brock, Hedrick, Vaughn
17 N.C. App. 697; 195 S.E.2d 377; 1973 N.C. App. LEXIS 1445

Bowling v. Hines

Opinion of the Court

HEDRICK, Judge.

Plaintiff’s claim against defendant Jones on her contract to guarantee payment of the fee incurred by defendant Hines is established when the pleadings and the stipulations are considered together.

The consideration for the contract between plaintiff and defendant Jones was plaintiff’s obtaining employment for defendant Hines. Since the contract between plaintiff and defendant Jones was in writing, the statute of frauds has no application. G.S. 22-1. The amount defendant Jones agreed to pay was the amount of the fee earned by plaintiff in securing employment for defendant Hines. The parties stipulated that plaintiff had obtained employment for defendant Hines and that the fee was $169.00.

Based upon the stipulations, plaintiff is entitled to judgment against defendant Jones in the amount of $169.00. The judgment dismissing plaintiff’s claim against defendant Jones is reversed and the case is remanded to the district court for the entry of judgment in accordance with the stipulations.

Reversed and remanded.

Judge Vaughn concurs. Judge Brock dissents.

Dissenting Opinion

Judge Brock

dissenting.

The opinion of the majority reverses and remands for entry of judgment against the defendant Jones in the amount *701of $169.00. This allows plaintiff to recover against defendant Jones upon a note given by defendant Hines to plaintiff to which defendant Jones was not a party. The majority treats the note as the same thing as the contract between defendant Hines and plaintiff, the performance of which was guaranteed by defendant Jones. However, there is no allegation, stipulation, or other evidence that the note sued on by plaintiff was given in payment of the obligation of defendant Hines to plaintiff under the contract. Of course, if the note were given in payment of defendant Hines’ obligation under her contract with plaintiff, the question would arise as to whether such payment discharged defendant Jones from her guarantee of performance of the contract.

I concur in the majority view that the reasons given by the trial judge for dismissing the action against defendant Jones are not valid. However, the judgment of the trial court, in my opinion, reaches the correct result. Therefore, I vote to affirm the dismissal of the action as to defendant Jones.

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