Chipley v. . Morrell

45 S.E.2d 129, 228 N.C. 240, 1947 N.C. LEXIS 596

• Court: Supreme Court of North Carolina
• Decided: November 26, 1947
• Status: Published

Opinion

WiNBORNE, J.

The challenge to the sufficiency of the allegations of the complaint on the ground upon which demurrer is based cannot be sustained.

While plaintiffs are not parties to the contract between defendants, they are beneficiaries under it to the extent of their commissions. And if the contract was not carried out by reason of wrongful act of feme defendant, plaintiffs would have a cause of action against her for recovery of damages.

It is well settled that where a contract between parties is made for the benefit of a third party, the latter is entitled to maintain an action for its breach. Boone v. Boone, 217 N. C., 722, 9 S. E. (2d), 383. See also Gorrell v. Water Supply Co., 124 N. C., 328, 32 S. E., 720; Parlier v. Miller, 186 N. C., 501, 119 S. E., 898; Land Bank v. Assurance Co., 188 N. C., 747, 125 S. E., 631; Thayer v. Thayer, 189 N. C., 502, 127 S. E., 553. See also Ins. Co. v. Sladiem, 223 N. C., 49, 25 S. E. (2d), 202.

While it is true the interest of the plaintiffs in the subject contract may be incidental rather than basic, or secondary rather than primary, nevertheless it specifically provides for their commissions, and we think the principle just stated applicable to the extent of their interest therein. Jones v. Realty Co., 226 N. C., 303, 37 S. E. (2d), 906.

We make no intimation as to what the facts are. Yet most likely the controversy will be solved, on all sides, by the finding of the jury as to the issue of fraud raised in Lampros v. Chipley, ante, 236.

The order below sustaining the demurrer is

Reversed.