* BURWELL, J., having been of counsel, did not sit on the hearing of this case. The complaint alleged in substance that plaintiffs were partners in mercantile business under the name of Coffey Whidby, and as such deposited in a bank of exchange and deposit established, owned, and operated by one D. W. Shuler, at Hickory, N.C. the sum of $1,275, for which they received a certificate of deposit (623) redeemable on demand; that about August, 1890, on account of rumors affecting the credit of said bank, plaintiffs became alarmed about the safety of their deposit and one of them, F. H. Coffey, visited Hickory and learning that Shuler was confined to his bed, went to his residence, where he was received by the defendant, the wife of Shuler, to whom he stated the object of his visit to be the getting some money from the bank; that he was admitted to Shuler's room, who told him, in the presence of defendant, that he was sorry that he could not let him have some money that day, that the safe was locked and the clerk did not know its combination, but added: "You shall have every dollar of your money," and then, addressing his wife, said: "You know that I have $43,000 of insurance on my life, and I want you now to promise that you will, when you receive that money, pay out of it Mr. Coffey's money"; that to this request of her husband the defendant at once replied that she would do so, telling him not to worry about it, the money should be paid; that shortly after the interview Shuler died, having made an assignment of all his property for the benefit of his creditors; that the defendant received from insurance companies $43,000 and immediately left the State and became a resident of another State. Plaintiffs prayed that the transaction might be declared an assignment of said sum derived from the policies of insurance or that it might be adjudged to be a declaration of a trust for their benefit or a charge upon the sum received to the amount of their debt.
Defendant demurred to the complaint.
From the judgment sustaining the demurrer the plaintiffs (624) appealed. If the oral promise alleged in the complaint was made by the defendant to the plaintiffs it is plain that it cannot be enforced against the separate personal estate of the defendant, as it is not in writing, is without the written consent of the (625) husband and does not charge such separate estate. Flaum v.Wallace, 103 N.C. 296. In order to avoid this difficulty it is insisted that the promise was made to the husband, and therefore the principles laid down in Flaum's case do not apply, and that she can charge, in *Page 432 favor of her husband, a large part of the capital of her personal estate without any formality whatever. By no means admitting such a proposition, but conceding it for the purposes of the argument, we are nevertheless unable to see how the plaintiffs can recover. If, as contended, the promise was made by the wife to the husband, it is well settled that the plaintiffs, if they are not parties to the contract, cannot sue upon it.Morehead v. Wriston, 73 N.C. 398; Brown on Actions, 99; Pollock on contracts, 191. This would seem to put an end to the plaintiff's action, but granting that under the Code of Civil Procedure the action may be maintained by the real parties in interest, which in this case it is claimed are the plaintiffs, for whose benefit it is alleged the contract was made, we must still deny their right to recover.
If, as insisted, the plaintiffs can sue, it is because they are substantially the parties interested in the contract, and as they were present at the time of the promise and impliedly assented to the same, and as they claim that their alleged forbearance constituted the consideration (there really being none moving from the husband), we cannot but regard it, at least in an action of this nature, as substantially an agreement between the plaintiffs and the defendant, and therefore within the case of Flaum v.Wallace, supra.
Entertaining these views, it is unnecessary to discuss the other interesting questions raised by the learned counsel.
AFFIRMED.
(626)