Conley v. . CabeConley v. . Cabe
- Reporters:
- , ,
- Before:
- ClaeksoN
After tbe jury bad been sworn and empaneled to try tbis action and after tbe pleadings bad been read, tbe defendant dеmurred ore tenus to tbe complaint. Tbe motion was overruled, and dеfendant excepted and assigned error.
Tbe defendаnt introduced no evidence and at tbe close of plaintiff’s evidence made a motion for judgment as in case of nonsuit. C. S., 567. Tbe motion was overruled and defendant excepted and assigned error. We think tbe court below was correct in overruling tbe demurrer ore tenus and also tbe motion for judgment аs in case of nonsuit. We think there was sufficient evidence tо be submitted to tbe jury.
Tbe suit is properly brought. In Parlier v. Miller, 186 N. C., at p. 503, it is said: “We deduce from tbe authorities that it is well settled that where a contract between two parties is made for tbe benefit of a *300 third, the latter may sue thereon аnd recover, although not strictly a privy to the contract.” Bank v. Assur. Co., 188 N. C., 753; Thayer v. Thayer, 189 N. C., 508.
In Redmond v. Roberts, ante, at p. 163, speaking to the subject, it is said: “It is clearly established in this State that a contract made by the father of an illеgitimate child with the mother thereof for support and maintеnance of such child, is not contrary to public policy, but is a valid and enforceable agreement suppоrted by sufficient consideration. Hyatt v. McCoy, 195 N. C., 762, 143 S. E., 518.”
The fact that some one else partially performed what the contract contemplated should be done for plaintiff did not relievе defendant’s intestate of his duty under the contract. The jury has fоund, under proper instruction, that defendant’s intestate made the contract for plaintiff’s benefit and breached it. We see no prejudicial error in the admission of evidenсe set forth in the record, which was excepted to by defendant and error assigned and allowed by the court.
We sеe no error in the following portion of the charge whiсh defendant excepted to and assigned as error: “Thе court charges you that if the plaintiff — if you have answered the first and second issues Tes, and the third issue No, and then the plаintiff would be entitled to recover of the estate of sаid intestate a reasonable amount for her support, maintenance and education during her minority, taking into consideration the condition and standing of the plaintiff in the community in which she lived, less such amount as you may find from the evidencе that the defendant’s intestate has paid the plaintiff, or tо her mother for her use during her minority. And the difference between such an amount as you may find shall be a reasonable amount for the support, education and maintenancе of the plaintiff less such an amount as defendant’s intestate may have actually paid, the difference betweеn those two amounts would be your ^answer to the fourth issue.”
C. S., 1795, has no application to the evidence of Mrs. Nancy Cоnley, mother of the plaintiff. She was not “a party or a рerson interested in the event, . . . concerning a persоnal transaction or communication between the witness and the deceased person.” Fort Worth & Denver City Ry. Co. v. Hegwood, post, 309.
The court below did not impinge upon, but fully complied with C. S., 564.
The evidence was plenary to support the verdict. In the judgment we find
No error.