S. Dixon, Davidson & Co. v. Pace , 63 N.C. 603 ( 1869 )

PearsoN, C. J.

There is no error. As the plaintiffs’ counsel has not filed a brief, we are at a loss to see on what grounds. -¿he ruling of his Honor is excepted to.

To give the plaintiff a cause of action against Pace, it was necessary to notify Mm that the plaintiffs accepted him as their -debtor, and had discharged Evans by giving him credit for khe amount. This it was in the power'of the plaintiffs to do ■at any time while the defendant had the money in hand, but it was too late to do so after the defendant had applied the money ■to the use of Evans in other ways.

True, the defendant received $250 from Evans with specific instructions to pay it to the plaintiffs, but the plaintiffs did nothing to vest in them a right of action against the defendant. Their condition was not changed, and they paid no consideration whatever, by which they could acquire this supposed right of action. The defendant was the agent of Evans? the money was subject to his control, until the plaintiffs did •something by which to acquire a right to it, and the fact that the defendant made a different application of the money from that which he was directed to make, was a matter between him and his principal, in which the plaintiffs had taken no steps to acquire a right to interfere. Strayhorn v. Webb, 2 Jon. 199.

In Draughan v. Bunting, 9 Ire. 10, the plaintiff had paid the debt to the bank, and that was the consideration by which he acquired a right of action for the money in the hands of the defendant. In Ingram v. Kirkpatrick, 6 Ire. Eq. 463, it is held that creditors secured by a deed of trust acquire rights under it without any act on their part, on the ground that the property passes by deed, and the maker may declare trusts without consideration, and it is expressly distinguished from a mere agency like the case we have before us.

In such agency the Court say the matter is between the principal and his agent, until third persons do something by which to give them rights.

Per Curiam. Judgment affirmed.