
    E. A. CRUMPLER, v. H. J. HINES, Admr. of F. R. COOPER.
    (Filed 10 October, 1917.)
    1. Judgments, Set Aside — Motions—Meritorious Defense.
    A judgment by default will not be set aside upon defendant’s motion on tbe ground of excusable neglect, unless bis averments, made in good faitb, establish tbe fact, if true, tbat be bas a meritorious defense, or tbe facts so alleged must make out a prima facie defense, tbe ultimate and final determination of these being left to tbe proper tribunal, if tbe motion is allowed.
    2. Same — Contracts—Beneficial Interests — Pleadings.
    A beneficiary under a contract may maintain an action for its breach; and where judgment final for want of an answer bas been rendered upon allegations of tbe complaint tbat tbe plaintiff furnished tbe money for tbe purchase of certain lands upon tbe agreement be was to share in tbe profits, etc., and tbat tbe transaction bad accordingly been made and a profit obtained, but be bad received nothing, a- motion by defendant to set the same aside, without a denial of these allegations, fails to state a meritorious defense, nothing else definitely appearing, and the motion will be denied.
    Appeal from tbe refusal of Lyon, J., to set aside a judgment, beard at May Term, 1917, of SampsoN.
    Tbis is a motion to set aside a judgment by default, on tbe ground of excusable neglect.
    Tbe action was commenced 23 January, 1912. Tbe complaint was filed at February Term, 1914, and tbe judgment, wbicb tbe defendant asks to have sot aside, was rendered by default for tbe want of an answer, at August Term, 1916,' and tbis motion was made witbin one year thereafter.
    Tbe complaint alleges tbat on 4 October, 1909, Jobn E. Fowler bought a tract of land at public sale, at tbe price of $385; tbat tbe plaintiff, at tbe request of Fowler, advanced tbe money to pay tbe purchase price, tbe said Fowler agreeing to repay said sum and to give to tbe plaintiff one-balf of tbe profits for wbicb tbe land should be sold; tbat on 22 December, 1909, tbe said Fowler sold said land to F. R. Cooper, tbe intestate of tbe defendant, for tbe sum of $600, and tbat tbe said Cooper then agreed tbat be would pay to tbe plaintiff tbe original purchase price and one-balf tbe profits on the- sale to him, and would credit said Fowler with tbe other half of said profits on an open account held by tbe said Cooper against tbe said Fowler; tbat tbe said Cooper lias never paid any part of said amount, and tbat thereafter be sold said land for tbe sum of $800.
    No answer was filed, and tbe facts above recited are not denied in tbe affidavit filed by tbe defendant in support of tbis motion, nor does be say tbat be lias a meritorious defense.
    Both parties filed affidavits before bis Honor, and after consideration thereof, judgment was entered, denying tbe motion of tbe defendant, upon tbe ground tbat, although excusabel neglect bad been shown, it bad not been shown tbat there was a meritorious defense, and tbe defendant excepted and appealed.
    
      Henry JS. Faison, I. G. Wright, and B. II. Grumpier for plaintiff.
    
    
      Butler & Herring for defendant.
    
   Allen, J.

One who asks to be relieved from a judgment on tbe ground of excusable neglect must show merit, as otherwise tbe court would be asked to do tbe vain thing of setting aside a judgment when it would be its duty to enter again tbe same judgment on motion of tbe adverse party. If be is a plaintiff, be must allege facts constituting a cause of action, and if a defendant, facts wbicb will be a defense.

It is not required that these facts be established conclusively on the hearing of the motion, but they must be alleged in good faith, and must, if true, in the one case show a cause of action, and in the other a defense.

In other words, the facts alleged must make out a prima facie cause of action or defense, the ultimate and final determination of these being left to the proper tribunal, if the judgment is set aside. Mauney v. Gidner, 88 N. C., 202; English v. English, 87 N. C., 497; Norton v. McLourin, 125 N. C., 189; Turner v. Machine Co., 133 N. C., 381; Minton v. Hughes, 158 N. C., 586.

Tested by these principles, we are of opinion his Honor held correctly that the defendant has not shown a meritorious defense.

He does not deny, even on information and belief, the facts alleged in the complaint, that Fowler bought the land at public sale for $385; that the plaintiff advanced the purchase money under an agreement with Fowler to repay the same, and to give him one-half the profits for which the land should be sold; that Fowler afterwards sold the land to the intestate of the plaintiff for $600, under an agreement to credit Fowler with one-half the profits on an account held against Fowler, and to pay to the plaintiff the other half of the profits and the original purchase price; that the intestate of the defendant has paid nothing and has sold the land for $800.

These facts constitute a good cause of action under the doctrine of Gorrel v. Water Co., 124 N. C., 333, approved and affirmed in Voorhees v. Porter, 134 N. C., 603; Supply Co. v. L. Co., 160 N. C., 431; Withers v. Poe, 167 N. C., 374, and other eases, that “one not a party or privy to a contract, but who is a beneficiary thereof, is entitled to maintain an action for its breach.”

This was at one time a much-debated question, relief being denied in some cases on the ground of want of privity, but the principle is now generally adopted as we have stated it. See 6 R. C. L., 884.

Nor are the facts alleged any defense to the plaintiff’s action.

The defendant says he has examined the books of his intestate and has found an account against Fowler of $233.87, due 13 January, 1909, and from this he concludes that the claim of the plaintiff is unreasonable, and this is the only fact stated bearing on a defense.

Fowler may be indebted to the intestate, but this could not be alleged to defeat a recovery upon his express promise to pay the plaintiff, and the transaction is not so unreasonable, from the standpoint of the defendant, as his intestate paid nothing and has received a payment of $107.50 on a debt, and a tract of land which he sold for $800.

The affidavits show that the deceased was an honorable attorney, and that cordial, friendly relations existed between him and Fowler. They had many dealings with each other, and both were careless in keeping the accounts between them, growing out of the confidence in each other, and we are constrained to believe this controversy would not have arisen if the deceased was alive.

There is no error.

Affirmed.  