SWAIN V. JOHNSON.

can only look to A for a breach of the former." This doctrine is supported by abundant authority. Cooley on Torts, supra; Otis v. Raymond, 3 Conn., 413; Young v. Scovell, 8 J. R., 25 N. Y.; Johnson v. Hitchcock, 15 J. R., 185; Gallager v. Brunell, 6 Cow., 347; Hutchins v. Hutchins, 7 Hill, 104.

Tested by these generally accepted principles, the plaintiff has entirely failed, for he does not allege, and there is not a shred of evidence to prove, that Noble was ready and willing to perform his alleged contract with plaintiff, but that he was prevented, against his will, from so doing by the false and fraudulent representations of West and Johnson, or either of them.

In fact, it is hard to discover in the record any evidence that at the time West is alleged to have purchased the timber the plaintiff had any subsisting contract with Noble. The latter had given plaintiff an option, but it had expired. Then Noble placed the deed with his attorney, Wooten, to be delivered in case plaintiff paid the purchase money in three days, as agreed, which the plaintiff failed to do.

Tested by the dictum of Judge Rodman, in Jones v. Stanly, supra, the plaintiff also fails, for under that authority, if followed, plaintiff must both allege and prove malice upon the part of West and Johnson, and he fails as to both.

The evidence does not disclose any illegal act committed by either West or Johnson, much less an evil one. The latter agreed to buy the timber from plaintiff, who then held an option on it, provided his attorney, Judge Shepherd, pronounced the title good. He examined it and pronounced it bad, and Johnson declined to purchase. After plaintiff had failed to take up the deed from Wooten and pay the price agreed upon between him and Noble, West purchased the timber from Noble and deposited the money to await the perfecting of the title.

It is very hard to discover in the evidence any moral, much less legal, wrong done the plaintiff by these defendants, or either of them. He lost the purchase of the timber, not by any fraudulent practices of West or Johnson, whereby Noble was prevented from selling to the plaintiff, but because he failed to pay Wooten the money for Noble and take the deed at the time agreed upon. The judgment is

Affirmed.

MARROW v. WHITE.

T. T. MARROW and Wife v. J. J. WHITE and Wife.

(Filed 6 October, 1909.)

Contracts ment.

- Debt of Another - Consideration

- Independent Agree

A promise to the landlord made by one advancing supplies to the tenant, under a mortgage, that if the landlord would wait until the tenant finished selling the crop the promisor would give him his note for the tenant's rent payable the next fall, is an independent contract between the landlord and one furnishing the supplies, and not barred by the statute of frauds. The question whether the landlord in this case has lost his lien by not following the remedy provided under the Virginia statute, does not arise.

APPEAL by defendant from O. H. Allen, J., May Term, 1909, of VANCE.

The facts are sufficiently stated in the opinion.

J. H. Bridgers for plaintiffs.

T. T. Hicks for defendants.

CLARK, C. J. The plaintiffs own a tract of land in Virginia. Their tenant sold some of the crop, and instead of paying the proceeds on the rent paid it to the defendant, a merchant, on his store account for supplies, for which he held a mortgage.

The plaintiff testified that the defendant told him, "If you will wait till Hilliard (the tenant) finishes selling, I will give you my note for the $75, payable next fall." The Code of Virginia, sec. 2496, gives the landlord a lien "prior to all other liens" and a remedy by distress. We need not consider the question debated before us, whether the landlord's lien in that State is lost by not taking out proceedings in distress, for, according to plaintiff's evidence, the defendant promised to pay the $75 if the plaintiff would let the tenant alone till he had gathered and sold the rest of his crop. This is not a promise barred by the statute of frauds, but an independent contract upon a consideration. Whitehurst v. Hyman, 90 N. C., 490; Voorhees v. Porter, 134 N. C., 604; Deaver v. Deaver, 137 N. C., 244; Salterfield v. Kindley, 144 N. C., 461, in which last case the point is fully and clearly presented by Mr. Justice Brown.

The nonsuit must be

Reversed.

THIGPEN V. COTTON MILLS.

ROLAND THIGPEN and ALBERT THIGPEN v. KINSTON COTTON MILLS and THE EMPLOYERS LIABILITY

ASSURANCE CORPORATION.

(Filed 6 October, 1909.)

Actio ns, Misjoinder of-Negligence-Personal Injury Loss of Son's

Services-Parties-Demurrer.

The joinder of a cause of action brought by a son, an employee, to recover of defendant cotton mill, his employer, damages for a personal injury alleged to have been caused by the latter's negligence, with that of the father to recover for the loss of the son's services alleged to have been caused by the same negligent act, is demurrable on the ground of misjoinder of parties and causes of action. Revisal, sec. 469.

APPEAL from W. R. Allen, J., March Term, 1909, of LENOIR. Civil action, to recover damages for personal injury, heard upon demurrer by his Honor, W. R. Allen, Judge, at Lenoir Superior Court.

The plaintiffs appealed from a judgment sustaining the de

murrer.

G. V. Cowper and Y. T. Ormond for plaintiffs.

Davis & Davis for Employers' Liability Assurance Corporation.

Rouse & Land for Cotton Mills.

BROWN, J. This is a suit brought by Roland Thigpen, an infant, and by Albert Thigpen, individually, against the Kinston Cotton Mills and the Employers' Liability Assurance Corporation (Limited), of London, England, for injuries received by the plaintiff, Roland Thigpen, while at work in the cotton mills of the Kinston Cotton Mills.

1. The son sues to recover damages for a personal injury received while working in the cotton mills, alleged to be due to negligence of the employer. The father is joined in same action and sues to recover of the employer for the loss of his son's services.

One of the grounds of demurrer is the misjoinder of parties and causes of action.

We think the demurrer was properly sustained and the action. dismissed. The son has no interest in the cause of action of the father, and the father has no interest in the cause of action of the son. It is a manifest misjoinder, both of parties and causes of action, and therefore the action cannot be divided. Revisal,

sec. 469.

SMATHERS V. INSURANCE COMPANY.

Cromartie v. Parker, 121 N. C., 198; Morton v. Telegraph Co., 130 N. C., 302; Edgerton v. Powell, 72 N. C., 64. 2. Another ground of demurrer is that the plaintiffs have no cause of action against the Employers' Liability Assurance Corporation.

The question raised by the demurrer has never been decided by this Court, and as the action is dismissed it is unnecessary to decide it now. The judgment of the Superior Court is Affirmed.

J. W. SMATHERS v. BANKERS LIFE INSURANCE COMPANY.

(Filed 6 October, 1909.)

1. Insurance, Life-Collateral Agreement-Policyholders-Preferred Class-Revisal, 4775.

When a policyholder surrendered his policy of life insurance for cancellation and received the surrender value, he cannot maintain an action against the insurance company upon an agreement made collaterally to the policy contract, and which is in direct contravention to the Revisal, sec. 4775, prohibiting discrimination among insurants of the same class and equal expectation of life, etc.

2. Same.

An agreement collateral to a policy contract of life insurance which selects a body of its policyholders not exceeding three hundred, and confers upon them such a property right in the funds of the company as to make the policies in this class self-sustaining in five or six years, is a distinction or discrimination between insurants of the same class and equal expectation of life, and prohibited by the statute. Revisal, sec. 4775.

When a collateral agreement delivered to insured with his policy of life insurance provided for the reduction of his premiums to be paid thereon, and is claimed to be the sole inducement moving him to take the policy, it is necessary for these inducements so claimed to be specified in the policy contract. Otherwise the collateral agreement is prohibited by the statute and not enforceable. Revisal, sec. 4775.

4. Same-In Pari Delicto.

A policyholder cannot enforce against the insurance company a severable collateral agreement to his policy contract of life insurance which is prohibited by statute. Revisal, sec. 4775, upon the principle that the law was not passed for the benefit of the company resisting recovery, but for the protection of the policyholders when it appears that the agreement is executory in char

SMATHERS V. INSURANCE COMPANY.

acter and gives him a preference over the general body of policyholders for whose benefit the statute was passed. In such cases the parties are in pari delicto.

APPEAL from Ferguson, J., February Term, 1909, of BUN

COMBE.

Civil action, heard on demurrer to complaint.

The complaint, in substance, alleged that plaintiff had heretofore had a policy of life insurance in defendant company to the amount of $5,000, and had paid the annual premium thereon for four years, from 1903 to 1906, inclusive, at the sum of $131.50 per year; that the insurance policy was taken by reason of a contract entered into between plaintiff and defendant, separately drawn and evidenced, constituting plaintiff a member of the "board of advisory agents" of defendant company for the State of North Carolina, not to exceed three hundred in number, and under the terms of which plaintiff, as such member, was to have a continuing share of the "renewal commissions upon all the business done by the company in said State, which share would increase from year to year, until at the end of five or six years the plaintiff's profits under said contract would fully pay the annual premiums upon said policy of insurance; so that, by reason of the benefits to accrue to plaintiff under said renewal commission contract, the plaintiff's said policy of insurance would, after the expiration of said five or six years, become selfsustaining"; that a scheme or plan was contained in the contract by which the interest of plaintiff in this renewal commission fund was to be declared and evidenced; and from time to time, in accordance with such plan, certain certificates were issued to plaintiff in evidence of his interest in said commission fund under the contract. These certificates were similar in form, one of them being, in words and figures, as follows:

"BANKERS LIFE INSURANCE COMPANY

OF THE CITY OF NEW YORK.

"This is to certify that John W. Smathers, a member of the company's board of advisory agents of the State of North Carolina, having caused the company to receive regular premiums on an additional amount of insurance in accordance with the provisions of this contract, shall be, at each distribution, entitled to six additional units of representation, provided that the conditions upon which said additional units were credited and the conditions of his said contract remain fulfilled.

"New York, N. Y., October 17, 1904.

FRANK G. COMBES, Secretary. "Form 736, 1-Pa., S. & N. C., 1-01-04."