Peacock v. . Williams

Smith, C. J. It will be seen from the fourth allegation of the complaint and its plain and distinct reference to this agreement, and from its introduction in support of the demand that the plaintiff’s right of action against the defendant rests entirely upon the undertaking on the part of Williams and Buchanan to surrender'the house to the owner of the lot, “ free from all liens and incumbrances whatever.” It is also apparent that the fund provided for this purpose is the note executed by the owner of the lot and secured in the manner specified in the contract. This security must be understood, as meant in the charge, that if “ they (the jurors) found that he (the defendant) had such funds, sufficient in amount, and had contracted with her (Mary F. Luke) to pay it, then they would, in answer to the issue, say how much wras due the plaintiff from the defendant.” In our opinion the point is well taken that the defendant incurred, under his agreement and from his possession of the note, no personal liability which the plaintiff can enforce in this form of action, ex contractu. The agreement is in sub *328 stance one for the indemnity of the owner of the property against its being subjected to the asserted lien, and is solely between the parties to it, with whom the plaintiff is not in privity. In Morehead v. Wriston, 73 N. C., 398, an incoming partner agreed with the others that the new firm should assume and become liable for the debts due Ity the old firm, and this upon a sufficient consideration; and it was held that a creditor of the old firm could not sue on the contract, Reade, J., remarking “that the agreement must be between the new partner and the creditor, and upon a consideration moving from the creditor .” See also Parker v. Shuford, 76 N. C., 219. The case does not come within that class wherein when money or an article of agreed money’s worth, as money, is deposited with one person to be paid to another, and the action is permitted for a recovery as of money received for his use under an implied contract to pay it according to numerous rulings. Draughan v. Bunting, 9 Ire., 10; Carroway v. Cox, Bush., 173. Yet there are qualifications of the principle, even in case of such reception of money.. Thus when an' agent received money from his principal with instructions to pay it to a certain creditor, and the agent made a different disposition of it, and no demand was made by such creditor until after the agent had accounted with. his principal, it was decided that the creditor could not look to the agent for such money. Dixon v. Pace, 63 N. C.. 603. So again in Strayhorn v. Webb, 2 Jones, 199, it is ruled that until the creditor for whose use the deposit is made does some act, whereby he ratifies the receiving “so as to extinguish the debt and make the money his own,” he cannot maintain an action against the party receiving. White v. Hunt, 64 N. C., 496. Here there is no promise to pay the plaintiff, and the defendant has no funds with which to make the payment, but only a note secured from the party by which they might be *329 derived, and the undertaking is to exonerate the property from liens and incumbrances, and it can be enforced, as it can be released by the party with whom the contract is made, and her liability for the materials furnished, not personal, but by reason of the lien, remains as before unaffected by the provision made for relieving the premises therefrom. The plaintiff vindicates his claim to follow the fund and cites numerous cases in its support decided in the Courts of 'Equity. But this is not the case presented in the complaint, which is one that under our former practice would have been an action at law, and depends not upon an equity, but upon contract. An immediate judgment is demanded, and this because the defendant holds a personal security of the owner of the lot and may have realized nothing under it wherewith to make the payment. In no point of view can the plaintiff maintain his action, and there is error in refusing to dismiss it. The judgment must, therefore, be reyersed. Error. Reversed.