FAUST V. FAUST.

C. Faust, without any consideration moving from them, but in consideration of the promise of their father to pay to the plaintiff the sum of $500. While the recital of a consideration paid by the grantee in a deed of conveyance is evidence of its truth, it is not conclusive. "It was formerly held, although there was much conflict of opinion, that the clause stating the consideration in a deed or other instrument under seal must be held conclusive on the parties like other parts of the instruments and was not open to contradiction or explanation, but the more modern decisions settle the rule that although the consideration expressed in a sealed instrument is prima facie the sum paid, or to be paid, it may still be shown by the parties that the real consideration is different from that expressed in the written instrument. Accordingly, it is held, by an uncounted multitude of authorities, that the true consideration of a deed of conveyance may always be inquired into and shown by parol evidence." 16 Cyc., 653. course of the decisions of this Court is set forth with care and ability by Shepherd, J., in Barbee v. Barbee, 108 N. C., 581; Kendrick v. Insurance Co., 124 N. C., 315; Deaver v. Deaver, 137 N. C., 240.

The

It was, therefore, competent for the plaintiff to show that, in truth, the sum of $500 recited in the deed was not paid to George A. Faust, but was to be paid to the plaintiff. It was held in Sprague v. Bond, 108 N. C., 382, that while such an agreement constitutes no trust nor passes any interest in the land itself, it entitles the party who is to receive the purchase-money to sue for the amount. Formerly the suit would have been in the name of the grantor to the use of the party who was to receive the purchase-money, but under our Code system the real party in interest may sue on a contract made for his benefit. If the fact be found as testified by the witness Saunders, we can see no valid reason why the plaintiff

FAUST . FAUST.

has not a right of action in personam against her brother for the amount which he promised his father to pay in consideration of his children receiving the title to the land. It is immaterial that the deed was made to the children instead of directly to him. The conveyance of the land to them was a sufficient consideration to support his promise to his father. The conveyance by the children of the same land to the defendant John C. Faust within a short time strongly tends to support the plaintiff's view of the transaction. Is the plaintiff barred by the statute of limitations? The transaction being subsequent to the Act of 1899, removing the disability from married women, her coverture does not prevent the operation of the statute. Her ignorance of her rights does not protect them. There is no evidence of fraud or mistake. When did her right to sue accrue? Defendant said that he was to pay the amount as he made it out of the land. It may be that while her right to the money arose out of the contract that her right to demand it was postponed until her brother made it out of the land-until, either by cultivation or rents, he realized the amount. Again, it may be suggested that her right to sue accrued when she became a party to the contract by demanding the amount. The question is not free from difficulty, and we forbear expressing any opinion in the present state of the record. We are of the opinion, as the motion to nonsuit admitted the truth of the testimony, with inferences most favorable to plaintiff, it developed, against defendant John C. Faust, a cause of action for the sum of $500. Other interesting questions, which may arise if she obtains a judgment, suggest themselves. We simply order a new trial to the end that the parties may proceed as they may be advised.

New Trial.

THOMPSON . EXPRESS Co.

W. E. THOMPSON v. SOUTHERN EXPRESS COMPANY.

(Filed 16 April, 1907).

1. Pleadings-Demurrer-Cause of Action-Damages Incident. It is not error in the Court below to overrule a demurrer to a complaint demanding damages for mental suffering caused plaintiff by defendant's alleged negligence, not as a separate cause of action, but as incident to a cause of action for failure on defendant's part to deliver certain whiskey which defendant, upon demand, wrongfully refused to deliver, and which was alleged to be for the purpose of relieving from pain and suffering plaintiff's dying mother.

2. Same Jurisdiction-Pleadings.-When from the allegations of a complaint, to which a demurrer had been interposed, it appears that the action may be sustained as a demand in tort in the Superior Court in a sum sufficient to give jurisdiction, and it is contended by the defendant that the action is for a breach of contract, involving a breach of public duty, and that therein it appeared that the only sum recoverable would be but a few dollars and could only originate in the court of a justice of the peace, it is the amount demanded in good faith and on facts alleged in the complaint as a whole which reasonably tend to support it, that fixes the jurisdiction of the court; and such cannot be restricted by defendant to his own point of view by irregular and defective pleading.

CIVIL ACTION, tried on demurrer by defendant, before Moore, J., and a jury, at October Term, 1906, Superior Court of ORANGE County.

The complaint alleged, in substance, that plaintiff having bought and paid for two dollars' worth of whiskey at Wilmington, N. C., where it was lawful to make and sell whiskey, defendant company agreed to transmit and deliver said whiskey to plaintiff at Mebane, N. C.

That on or about 1 June, 1906, the whiskey having arrived at Mebane in good order and properly addressed to plaintiff, plaintiff applied to agent of defendant company for same, offering to pay the express charges; and defendant

THOMPSON . EXPRESS Co.

refused, and still refuses, to deliver the package, as it had contracted and undertaken to do.

That the whiskey had been ordered, pursuant to medical prescription, for plaintiff's mother, who was desperately ill with a fatal malady, and was desired and necessary to relieve her suffering and prolong her life.

That the agent of defendant company was fully informed of the conditions and of the purpose for which the whiskey was to be used, and, notwithstanding this knowledge, said agent unlawfully and wilfully refused to deliver said whiskey to plaintiff, or any part thereof.

That by reason of this misconduct and breach of duty on part of defendant company the plaintiff's mother was compelled to endure great increased and unnecessary suffering for a week or more; and that "meantime, while attending at the bedside of his dying mother, he witnessed her agonizing pains which he could not relieve on account of the wanton default of defendant, whereby he was damaged to the amount of $1,999"; and prays judgment for said amount and costs of action.

To this complaint defendant demurs, as follows:

"The defendant, the Southern Express Company, comes into Court and demurs to the complaint of the plaintiff in that it does not state facts sufficient to constitute a cause of action:

"1. That the plaintiff is not entitled to recover as alleged in the complaint for mental anguish in an action of this character when there is no bodily harm done to him.

"2. That the damages sought to be recovered, as alleged in the complaint to have been suffered by the plaintiff, are too

remote.

"3. That there is no allegation that physical injury or bodily injury was done to the plaintiff, and he cannot re

THOMPSON v. EXPRESS Co.

cover for mental distress or anxiety caused by sympathy for his mother's suffering."

There was judgment overruling the demurrer and allowing defendant to answer, and defendant excepted and appealed.

John W. Graham and Frank Nash for plaintiff.

John A. Barringer for defendant.

HOKE, J. Without comment on the merits or legal bearings of this controversy as they shall appear when the facts are established, we are of opinion that the demurrer of defendant was properly overruled.

The mental suffering for which plaintiff demands compensation is not set forth as a separate cause of action at all, but is stated and claimed as damages incident to a cause of action for a wrongful failure on the part of defendant company to deliver the whiskey. This being true, it is not open to defendant by demurrer to eliminate the element of damage from plaintiff's demand; and such a demurrer, therefore, was properly overruled.

The case is controlled by the decision in Hall v. Telegraph Co., 139 N. C., 369-373. In that opinion, on facts very similar to those appearing in the present appeal, the Court said: "Here is a plain and concise statement of a cause of action for breach of contract, in the negligent failure of the defendant company to deliver a telegram. It would seem that the character and urgency of the message were such as to notify the defendant that unless a satisfactory answer was received in regular course of transmission the plaintiff would go to Fayetteville, which in fact he did, according to the allegations of the complaint. If this be the correct and reasonable interpretation of the message, the cost of the trip to Fayetteville would be an element of damage. There is an