#### BANK OF SAMPSON v. A. M. BARBREY et al.

(Filed 31 March, 1910.)

Contracts — Territorial Rights — Fraud—Vendor and Vendee — Third Persons.

The facts of this ease being substantially the same as those in Bank v. Matcher, 151 N. 0., 359, excepting that the note for territorial rights for the sale of the commodity was made direct to the bank and not to the vendor, without sufficient evidence that the bank was interested in the sale, or was a copartner with the vendor, the decision in that case controls this appeal.

.ÁRKEAL from Guión, J., at January Term, 1910, of SampsoN.

Action on a note. Tbe execution of tbe note dated 25 May, 1907, payable to' plaintiff for $288, was admitted, and also payment of $144 on 12 September, 1907. Tbe defendants pleaded a counterclaim. At close of all tbe evidence tbe court tben sustained a motion to- nonsuit defendants upon counterclaim, upon tbe ground tbat there was no’ sufficient evidence to support it. Defendants excepted, and appealed from verdict and judgment rendered. ,

Faison & Wright and F. B. Cooper for plaintiff.

George E. Butler and J. D. Kerr for defendants.

Brown, J.

We are of opinion tbat bis Honor did not err in sustaining tbe motion to dismiss tbe counterclaim. Tbis case is substantially tbe same as Bank v. Hatcher, 151 N. C., 359, except tbat bere tbe note is payable directly to tbe bank and tbat tbe note is executed by a feme covert and ber busband, and a specific charge is made upon ber personal property, tbe title to which is assigned as security.

We find no sufficient evidence tbat tbe bank was a copartner or interested with towtbrop in tbe sale of tbe territorial rights for tbe vending of tbe safety locks.

It further appears tbat defendants sold the locks all during tbe spring and summer of 1907, and. made no complaint to Lowthrop, and voluntarily paid $144 on tbe note to tbe bank on 12 September, 1907.

It would seem tbat tbis is a stronger case for plaintiff than Bank v. Hatcher.

No error.