Peacock v. Williams

• Decision Date: 21 December 1887
• Parties: PEACOCK v. WILLIAMS.
• Court: North Carolina Supreme Court

4 S.E. 550

98 N.C. 324

PEACOCK v. WILLIAMS.

Supreme Court of North Carolina

December 21, 1887

Appeal from superior court, Haywood county; W. J. MONTGOMERY, Judge.

Action bye J. N. Peacock, appellant, to recover of George W Williams, appellee, $54.91. The fourth paragraph of the complaint, referred to in the opinion, was as follows "(4) That on or about the nineteenth day of July, 1886 the defendant, for and on the part of the firm of Williams & Buchanan, of which firm the defendant was a member contracted with the said Mary F. Luke, for valuable consideration, that they (said Williams & Buchanan) would pay off and discharge 'all liens and incumbrances whatever' upon the said property."

The owner of an improved lot agreed to give a creditor a mortgage on the property, provided the creditor would receipt her account, pay her in cash the difference between that and the face of the mortgage, and give her full possession of the house, free from all liens and incumbrances. Held, that there was no privity between the creditor and one who had perfected his lien for materials, furnished for the house, such that the latter could sue the creditor therefor.

W. L. Norwood, for appellant.

The contract upon which the action is brought is not under seal and gives the plaintiff a right of action, although he is no party to it. And this is especially the right of plaintiff where, as in this case, the money is paid to trustee, or the trustee is secured by a mortgage. 1 Chit. Pl. 4, 5; Code N.C. § 177. The defendant became a trustee, by virtue of this contract, for all persons having liens against the house and lot. Libbett v. Maultsby, 71 N.C. 345; Gudger v. Baird, 66 N.C. 438; Code N.C. § 425; Bobbitt v. Brownlow, Phil. Eq. 252; Hill, Trustees, 780; Hoover v. Berryhill, 84 N.C. 132; Barrett v. Brown, 86 N.C. 556.

G. S. Ferguson, for appellee.

SMITH C.J.

This action is prosecuted to recover a balance alleged to be due for lumber furnished the contractor, and used in building a house on the lot of Mary F. Luke, for which a lien had in due time been filed. The claim against the defendant arises out of a contract in these words:

"Memoranda of agreement between Geo. W. Williams, on the part of Williams & Buchanan, and Mrs. Mary F. Luke, all of the town of Waynesville, N.C. Mrs. Mary F. Luke agrees to make a promissory note for eight hundred dollars, ($800.00,) payable one year after date, and bearing interest at the rate of 10 per cent. per annum, secured by mortgage on certain property of Mrs. Mary F. Luke in the town of Waynesville, N. C., said note payable to the order of Williams & Buchanan, on this condition: that said Williams & Buchanan shall receipt and deliver all bills and accounts now due them by Mrs. Mary F. Luke, and pay over to her in cash all balance between the amount of their said bills and accounts and the face value of said note, and surrender to the said Mrs. Mary F. Luke full and free possession of the house lately erected on the lot of Mrs. Mary F. Luke, in the town of Waynesville, N. C., free from all liens and incumbrances whatever. Mrs. Mary F. Luke reserves to herself the right to redeem said note at any time before maturity, by payment of the face of said note, with the accrued interest. Mrs. Mary F. Luke further agrees to place an insurance of ($1,200) twelve hundred dollars upon the said property, for the term of three years, assignable to said Williams & Buchanan, as further security on said note. In case the said note is paid before or at maturity, the insurance is to be transferred to Mrs. Mary F. Luke, for her sole benefit, and subject to her own disposal.

"Witness our hands, this nineteenth day of July, 1886.

[Signed] "MARY F. LUKE.

[Signed] WILLIAMS & BUCHANAN,

[Signed] Per GEO. W. WILLIAMS."

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 & 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...