Withers v. R. A. Poe & Co.

Dec 2, 1914
Reporters:
, ,
Before:
IIoke
IIoke, J\,

after stating the facts: In Supply Co. v. Lumber Co., 160 N. C., 428, it was held that “the beneficiaries of a contract can ordinarily recover, though not named therein, when it appears by express stipulation or reasonable intendment 'that their rights and interests were contemplated and being provided for.” The ruling was intended as an interpretation of several of the later decisions in which the principle was announced and sustained, notably, Gastonia v. Engineering Co., 131 N. C., 363; Shoaf v. Ins. Co., 127 N. C., 308, and Gorrell v. Water Co., 124 N. C., 328, and where the same applies, the consideration moving between the parties named, like the obligation, inures to the benefit of the claimant, and will sustain a recovery on the contract. This was . expressly held in all of these cases, that of Shoaf v. Ins. Co. bearing perhaps the greatest resemblance to the one now before us.

In Shoaf s case one company had reinsured all the outstanding risks of another and taken over its assets. A recovery by a policy-holder was allowed directly against the latter company, although there was an express stipulation that no .such direct liability should attach, and Fair-cloth, J., in stating the position as applied to the facts of that case, said: “If A., on receipt of good and sufficient consideration, agrees with B. to assume and pay a debt of the latter to C., then O. may maintain an action directly on such contract against A., although C. is not privy to the consideration received by A.; and Johannes v. Ins. Co., 66 Wis., is in recognition of the same general principle.”

*375 The cases in this State where recovery by third parties has been denied have been chiefly on contracts giving no indication that the interests of these persons were contemplated or being provided for, as in contracts of strict indemnity, a case presented in Clark v. Bonsal, 157 N. C., 270, and in which there was nothing to indicate that the interests of third persons were at all considered, and the case of Peacock v. Williams, 98 N. C., 324, may be referred to a like principle. It seems that the case of Morehead v. Winston, 73 N. C., 398, cannot be reconciled with the later decisions involving the position, and, to that extent, same may be considered as overruled.

From the facts, as they are now presented in the record, it appears that D. S. Caldwell, for valuable consideration moving between himself and E. A. Poe, has covenanted for himself, heirs, assigns, and successors, to assume the indebtedness of E. A. Poe & Go., and to release said Poe from any and all obligation except to aid in collecting the assets, and it further appears that these assets, to the amount of $5,811.78, have been withdrawn from any and all control of said E. A. Poe and set apart, if required, for the purpose of paying such indebtedness, and, applying the principle as it now prevails with us, we think it thus sufficiently appears that the interest of the company’s creditors, including plaintiff, were being considered and provided for in the contract, and, if the facts stated are accepted by the jury, that plaintiff is entitled to recover.

For the reasons stated, we must hold there was error in entering judgment of nonsuit, and the same will be set aside.

Eeversed.