Findly v. Ray, 50 N.C. 125, 5 Jones 125 (1857)

Dec. 1857 · Supreme Court of North Carolina
50 N.C. 125, 5 Jones 125


A reference to arbitration will be binding if there be a Iona fide difference of opinion between the parties as to their rights, although there be not a legal cause of action.

Unless there bo some reason given by counsel why the Judge should remark particularly on the testimony of a witness, he may, with propriety, decline a request to do so.

An agreement by which one party is subjected to trouble, loss, or inconvenience, is not a nudum pactum.

*126This was an action of assumpsit, tried before MaNly, J., at the last Fall Terra of Orange Superior Court.

The plaintiff had employed the defendant, who was a house carpenter, to do certain work upon his dwelling, about which the parties had a settlement, and the plaintiff’s note, for a certain sum, was given, which, in a short time, was paid off. Afterwards, the plaintiff complained to the defendant that the charges were grossly excessive, and insisted that he should refund, whereupon the defendant agreed to refer it to two persons, who were named, to decide upon the value of the work and materials, and promised the plaintiff to refund any excess over the sum they should say. The persons to whom it was referred, met and decided the, matter, giving their award in writing.

It was stated by a witness, thatone of the arbitrators, after the award was made, prepared a bond for the defendant to sign, which he refused to do; and ho understood the plaintiff to say that the defendant would not be bound unless he could be got to sign it.

It was further in proof, on the trial, that the charges for the work, &c., were excessive, as decided by the referees. The defendant contended that neither the consideration, nor the promise, was sufficient to support an action.

The Court was of opinion that, if the j ury found the charges to be excessive upon the testimony before them, an express promise to refund the excess would be binding, and so instructed the jury.

It was referred to the j ury also to find whether there was an express promise to pay the excess, as it might be decided by the referees, in accordance with the agreement; if so, the promise was sufficient. But if it was an uncompleted negotiation for a reference, as, if the reference was to be by bond, and the bond was never entered into, the promise would be upon a condition not executed, and would not be binding. The defendant excepted.

As the jury were about retiring, defendant’s attorney asked the Court to call their attention especially to the testimony of *127one of tlie witnesses ; but the Court perceiving no reason for remarking particularly on the testimony of that witness, declined doing so. Defendant excepted.

Yerdict for the plaintiff. Judgment and appeal.

No counsel for the plaintiff appeared in this Court.

Bailey, and Fowle, for the defendant.

Pearson, J.

In respect to the agreement to refer the alleged excess of charge to the determination of the two persons named, Mayo v. Gardner, 4 Jones’ Rep. 359, is in point. To make such an agreement binding, it is not necessary that there should be a legal cause of action. It is sufficient if there be a bona fide difference of opinion as to the rights of the parties. If it be admitted that the defendant was under no legal obligation to refund the excess, still it,is clear that the plaintiff honestly thought he was, and the mode of settling the difficulty which the parties mutually agreed to, is binding according to the authority of the above case, and the cases there cited.

In respect to the exception that the Court refused to call the attention of the jury particularly to the testimony of one of the witnesses, Boykin v. Perry, 4 Jones’ Rep. 325, is decisive.

In respect to the objection, that the express promise to pay whatever sum the two persons named should decide to be the excess, is void for the want of a consideration ; we are satisfied it does not fall under the class of nude pacts. Any benefit to the one, or loss, or trouble or inconvenience, to the other party, is a sufficient consideration. In this case, the plaintiff was subjected to the trouble and inconvenience of procuring the two persons named, to inspect the work and render their decision in writing. After this, the defendant was not at liberty to say his express promise had no consideration to support it; for the trouble and labor of having the inspection made, was undertaken upon the faith of this promise, and in legal parlance was done at his “ instance and request.” This distinguishes the case from Hatchell v. Odom, 2 Dev. and Bat. *128Bep. 302. where the subject of consideration is fully discussed,, and the court conclude that the promise in that caso was-nudwnpackím; for “No benefit has resulted to the defendant’s intestate from being permitted by the plaintiff to incur the expense and trouble of endeavoring to cure the plaintiff’s slave. No inconvenience or prejudice has been occasioned to-the plaintiff” — thus affirming the general doctrine, and making that case an exception. See notes to Lampleigh v. Brathwait, 1 Smith’s leading cases, 193 (67.) There is no error.

Pee Cukiam, Judgment affirmed.