the grounds (1) that the agreement was without consideration; (2) that the same contradicted the deed; (3) that the contract was invalid under the statute of frauds, the same being a contract concerning realty, and required to be in writing.

The decisions of this state are against the defendant on each of the propositions advanced by him: Michael v. Foil, 100 N. C. 178, 6 Am. St. Rep. 577, 6 S. E. 264; Sprague v. Bond, 108 N. C. 382, 13 S. E. 143.

The consideration arose at the time of the sale, and as part inducement thereto.

The conveyance, the purpose of which was to pass the title, is allowed its full operation, and is therefore in no wise contradicted. And the agreement enforced by this recovery attached to the proceeds from and after the sale, and was not, therefore, concerning land, or any interest therein, within the meaning of the statute of frauds.

383 In Michael v. Foil, 100 N. C. 178, 6 Am. St. Rep. 577, 6 S. E. 264, it was held: "At the time of the delivery of a deed for land, and as a part of the inducement for its execution, it was orally agreed between the vendor and vendee that if the vendee should sell the mineral interest in the land during vendor's life he would pay the vendor one-half of the amount received therefor: Held, that such agreement could be shown by oral evidence, and did not come within the statute of frauds."

In Sprague v. Bond, 108 N. C. 382, 13 S. E. 143, it was held as follows: "S., being the owner of certain lands, conveyed them by deed absolute to B., upon the parol promise of the latter, from the proceeds of any sale the vendee might make, after paying expenses, etc., the vendor should be paid a part: Held, not to be within the statute of frauds." And Shepherd, judge, delivering the opinion, said: "The enforcement of the alleged agreement, after the sale of the land, does not in any respect impinge upon the terms of the conveyance, but relates entirely to the payment of the consideration. It is true that the plaintiff could not have compelled the defendant to execute her agreement to sell the land, as there was no enforceable trust, and the agreement was within the statute of frauds, but this part of the agreement has been voluntarily performed, and the other part, not being within the statute, may now be enforced."

This last opinion refers with approval to the case of Hess v. Fox, 10 Wend. 436, in which Savage, C. J., delivering the opinion in a similar case, said: "No question can arise on the validity of the agreement to sell. That was performed, and the remaining part was to pay over money, supported by the consideration of land conveyed to the promisor."

These authorities are decisive against defendant, and the judgment below is affirmed.

For Authorities Supporting the Principal Case, see the note to McCoy v. McCoy, 102 Am. St. Rep. 238, on what amounts to a contract for the sale of land within the meaning of the statute of frauds.

HELMS v. WESTERN UNION TELEGRAPH COMPANY. [143 N. C. 386, 55 S. E. 831.]

TELEGRAPH COMPANIES-Delay in Delivery of MessageRecovery for Mental Anguish.-If there is nothing on the face of a telegram to reasonably charge the telegraph company with the knowledge that the plaintiff was the real beneficiary, and that his son, who signed the message, was acting as his agent, and nothing to charge the company with notice that plaintiff might suffer mental anguish if the telegram was unreasonably delayed, he cannot recover therefor. (p. 812.)

TELEGRAPH COMPANIES-Delay in Delivery of MessageDamages for Mental Anguish.-One who is not mentioned in a telegraphic message, and whose interest therein is not communicated to the telegraph company, cannot recover substantial damages for mental anguish arising from negligent delay in delivering, or failure to deliver, the message. (p. 813.)

TELEGRAPH COMPANIES-Delay in Delivery of MessageMeasure of Damages.-If a message is sent for the benefit and at the instance of one whose name does not appear on its face, and the telegraph company is not informed of the nature of the transaction to which the message relates, nor of the position which the plaintiff would probably occupy, the measure of damages for negligent delay in the delivery of the message is the sum paid for sending it, and there can be no recovery for mental anguish. (p. 814.)

Action by one M. A. Helms against the telegraph company to recover damages for mental anguish caused by the failure of such company to promptly deliver to his son in law a message which he had sent through his son, John Helms, as follows: "Will Helms, Charlott, N. C. Mother very sick.

Come at once. (Signed) John Helms." Judgment for plaintiff. Defendant appealed.

Burwell & Causler, for the plaintiff.

Tillett & Guthrie, for the defendant.

387 BROWN, J. The exceptions of the defendant to the evidence and to the charge of the court raise two questions for our consideration : 1. Is there any evidence which charges the defendant with knowledge that John Helms filed the telegram as the agent of and for the benefit of his father, M. A. Helms? 2. Can this plaintiff sustain an action for damages for mental anguish without proving such fact?

As to the first contention of the defendant, we think the evidence tends to prove that John Helms, twenty-six years old, and the son of M. A. Helms, filed the telegram with the operator at Pineville; that the operator asked for the number and street of the sendee; that John Helms said he did not know it; that the operator said he could not send the message until he got the address; that John Helms went back to his father and got the address; that he told the operator that his father knew the street number; that the operator knew John Helms and also knew the plaintiff; that John Helms told the operator that the sendee, Will Helms, was his brother in law, and that the plaintiff sent John Helms to send the message and gave him the money to pay for it, but John Helms failed to so inform the operator.

We think there is nothing in the evidence which could reasonably charge the defendant with knowledge that the plaintiff was the real beneficiary and that his son was acting as his agent in sending the message. There is nothing in the evidence or on the face of the message which charges the defendant with notice that M. A. Helms, the plaintiff, may suffer mental anguish if the telegram is unreasonably delayed: Western Union Tel. Co. v. Kirkpatrick, 76 Tex. 217, 18 Am. St. Rep. 37, 13 S. W. 70.

As to the second contention, we are likewise of opinion with the defendant. The overwhelming weight of authority is to the effect that a party who is not mentioned in a message or 388 whose interest therein is not communicated to the company cannot recover substantial damages for mental anguish : Squire v. Western Union Tel. Co., 98 Mass. 232, 93 Am. Dec. 157; Western Union Tel. Co. v. Proctor, 6 Tex. Civ. App. 300,

25 S. W. 811; Weatherford etc. Ry. Co. v. Seals (Tex. Civ. App.), 41 S. W. 841; Elliott v. Western Union Tel. Co., 75 Tex. 18, 16 Am. St. Rep. 872, 12 S. W. 954; Western Union Tel. Co. v. Brown, 71 Tex. 723, 10 S. W. 323, 2 L. R. A. 766.

This doctrine is nowhere more emphatically declared than by the supreme court of Texas, where the doctrine of mental anguish is supposed to have originated. In Southwestern T. & Tel. Co. v. Gotcher, 93 Tex. 114, 53 S. W. 686, that court affirmed its former ruling to the effect that a party whose interest in the telegram was not made known to the company. could not recover. There appears in this opinion the significant statement by the court that the court had "already expressed its disinclination to extend the right of recovery in this class of cases beyond the limits already fixed by the decisions of this court." In Davidson v. Western Union Tel. Co., 21 Ky. Law Rep. 1292, 54 S. W. 830, and Morrow v. Western Union Tel. Co., 107 Ky. 517, 54 S. W. 853, the court of appeals of Kentucky held that a party whose name was not mentioned in the message could not recover for mental anguish.

In Rogers v. Western Union Tel. Co., 72 S. C. 290, 51 S. E. 773, the supreme court of South Carolina, after referring to the rule of Hadley v. Baxendale, 9 Ex. 341, as controlling these mental anguish cases, then proceeded to hold that the party whose interest was not disclosed could not recover. The headnote correctly digests the opinion in these words: "Where a husband sends a telegram to his wife's mother, and it does not show on its face that it is for the benefit of his wife, and it is not alleged in the complaint that the telegraph company had notice that the telegram was sent for the benefit of the wife, the complaint fails to show that she was entitled to damages for failure to deliver."

In Poteet v. Western Union Tel. Co., 74 S. C. 491, 55 S. E. 113, Mr. Justice Woods, speaking for that court, discusses the matter with much clearness of expression: "In cases of this character the suit is usually for the tort committed in breach of the public 389 duty owed to the plaintiff; but the duty springs out of the contract and depends on it, for manifestly the defendant owes no public duty concerning a particular telegram except to those for whom or in whose behalf it has undertaken to transmit it. All others are of the outside public, and damages which they incidentally suffer cannot by any stretch be regarded the natural and proxi

mate result of failure to transmit a particular telegrapme message. The contract fixes the relation, and he who sues for tort based on contract must show privity with the party to be charged by connecting himself with the contract as a party or a known beneficiary. In further support of this view, it may be remarked that as to the subject matter of a telegram it is too well established for discussion, before there can be a recovery the telegraph company must have notice that the particular result alleged as the basis of the claim was to be apprehended from delay in transmission. The same principle makes it necessary to recovery that there should be notice to the company of the beneficial interest of the particular person who claims compensation for suffering." In his opinion the learned justice cites a large number of authorities in support of his views.

The right of the sendee to recover of a telegraph company for error or negligence in the transmission or delivery of a telegram is altogether denied in Great Britain: Playford v. United etc. Tel. Co., L. R. 4 Q. B. 706. In this country the English doctrine does not generally prevail. Here the weight of authority holds that the sendee may recover in his own name such damage as he may have sustained by reason of negligence when the message was intended for his benefit and it was apparent on the face of the message or the company otherwise had knowledge of it: 2 Shearman and Redfield on Negligence, 5th ed., sec. 543; Joyce on Electric Law, sec. 1008; Frazier v. Western Union Tel. Co., 45 Or. 414, 78 Pac. 330, 67 L. R. A. 320.

The same principle applies where the message is sent for the benefit and at the instance of anyone whose name does 390 not appear on its face. The well-known rule laid down in Hadley v. Baxendale, 9 Ex. 345, decided in 1854, has been applied by the supreme court of the United States to telegraph cases, and it is held that where the telegraph company is not informed of the nature of the transaction to which the message relates, or of the position which the plaintiff in the action would probably occupy, the measure of damages for negligence is the sum paid for sending: Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. Rep. 1098, 38 L. ed. 883; Western Union Tel. Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. Rep. 577, 31 L. ed. 479.

Our own court has adopted the same principles of law as applicable to this class of cases. In a well-considered opinion