Pedwell v. FIRST UNION NAT. BANK OF NC , 51 N.C. App. 236 ( 1981 )

275 S.E.2d 565 (1981)

Michael R. PEDWELL and wife, Vicki A. Pedwell
v.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA and Cameron-Brown Company.

No. 8021SC707.

Court of Appeals of North Carolina.

March 17, 1981.

Alexander, Hinshaw & Schiro by Gregory W. Schiro, Winston-Salem, for plaintiffs-appellants.

Hutchins, Tyndall, Bell, Davis & Pitt by Walter W. Pitt, Jr. and Richard D. Ramsey, Winston-Salem, for defendants-appellees.

WEBB, Judge.

The defendants' motion to dismiss pursuant to Rule 12(b)(6) should not have been allowed unless it appears from the complaint that the plaintiffs can prove no state of facts that will entitle them to relief. F. D. I. C. v. Loft Apartments, 39 N.C.App. 473, 250 S.E.2d 693 (1979).

The plaintiffs have made allegations which, if proved, could establish that the bank made a contract to sell a condominium to the plaintiffs; that after making the contract, the bank determined it did not want to perform the contract; that the bank then made an agreement with Cameron-Brown by which Cameron-Brown would not make a loan to the plaintiffs to finance the purchase and would not notify the plaintiffs of the loan refusal until it was too late for the plaintiffs to secure alternate financing; and that Cameron-Brown, in furtherance of this agreement, refused to make the loan, not because of a legitimate business reason, but in order to prevent the plaintiffs from performing their part of the contract. A party to an executory contract is under a duty not to do anything to prevent the other party to the contract from performing. When he does something that prevents the other party from performing, he is liable in damages. See Transfer, Inc. v. Peterson, 37 N.C.App. 56, 245 S.E.2d 207 (1978). If the bank entered into an agreement with Cameron-Brown to prevent the plaintiffs from performing this part of the contract and Cameron-Brown, did in fact prevent the plaintiffs from so performing, the defendants would be liable for their acts pursuant to this conspiracy. See Shope v. Boyer, 268 N.C. 401, 150 S.E.2d 771 (1966) for a discussion of civil conspiracy. It was error to dismiss this action.

If the jury should find that the defendants conspired to prevent the plaintiffs from performing their part of the contract, this would be an "unfair ... act ... affecting commerce" under G.S. 75-1.1(a). See Edmisten, Attorney General v. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977) and Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977).

Reversed and remanded.

HEDRICK and HARRY C. MARTIN, JJ., concur.