The plaintiff alleges, in its complaint, the written agreement set forth above as “ Exhibit B,” as modified by the other writing set forth above as “ Exhibit C, No. 1and its alleged cause of action is founded on that agreement and alleged breaches thereof in respects specified. The defendants deny the agreement as alleged, and the evidence produced on the trial bore mainly on the issue raised by the pleadings in that respect.
The exceptions to the admission in evidence of the original paper writing and letters, cannot be sustained. They were competent evidence of the principal parties themselves to show that they executed, accepted, assented to and acted upon the agreement as alleged. Each of these writings tended more or less strongly to prove that the parties did so, and the mere fact that they went to show how, when and why the parties came at last to assent and consent to such agreement, cannot destroy their competency as evidence. The first agreement, “ Exhibit A,” was not acceptable to the parties — the objections to it tended to show that these were obviated in the substitution and adoption of “ Exhibit B,” as modified by “ Exhibit C, No. 1,” and the letters went to show the nature and extent of the objection on both sides, and that these -were removed and the agreement was accepted and concluded.
The evidence of the defendant Johnson was not in any material respect in conflict with that produced by the plaintiff; on the contrary, it was substantially in harmony with it. He testified as to his objection to “ Exhibit B,” and other *232evidence — the correspondence — showed that his objection was removed, and he expressed his willingness to do as he said in “ Exhibit C, No. 1,” he would do.
There was no material conflict in the evidence. Accepting it all as true, the agreement was as alleged in the complaint, and in all material respects as alleged it had been interpreted and its meaning and effect settled by this Court in Chemical Co. v. Johnson, 98 N. C., 123.
The issue submitted to the jury was very general in its bearing upon the pleadings, and scarcely a proper one; but as there was no objection to it, it must be taken that it was submitted by consent of the parties; they were content to reach the merits of the matters of fact at issue through and by it, and they must be concluded by the verdict.
The instruction of the Court to the jury was very broad and comprehensive, but it does not appear to be erroneous. Taking the evidence altogether as true, the verdict was a proper one. It was not such in its bearings upon the issue as required that it be presented to the jury in various conflicting views of it; it was in substance consistent and harmonious, and fit to be considered and taken altogether as true or false.
The exception to the instruction is very indefinite — quite as broad as the instruction, and comprehensive as the issue. No particular error is assigned. It is questionable whether or not it could be considered. Judgment affirmed.
PLAINTIKE’S APPEAL.
The Court in its judgment allowed the appellee, Busbee, certain commissions for selling the guano to which there was no objection, and also, “ the sum of one hundred dollars to pay counsel fees,” to be paid out of the fund mentioned. To this allowance the plaintiffs excepted and appealed.
This Court decided in Chemical Co. v. Johnson, 98 N. C., 123, that the plaintiff sold the guano mentioned to the defendant *233Johnson, coupled with the trust, that the latter would sell it and apply the proceeds of the sale to the payment of his several promissory notes made to the plaintiff, coming due successively at different times, for the purchase money thereof. Johnson therefore had no right or authority to sell the guano to the appellee, Busbee, trustee, for the purposes specified in the deed of trust made to him; and so neither the guano nor the proceeds of the sale thereof became affected by the trust created by that deed, nor did they become part of the trust fund to be administered by the trustee; but they were to be applied to the payment of the plaintiff’s notes mentioned above.
The plaintiff did not desire that the appellee trustee should have or sell or in any way interfere with the guano. On the contrary, it opposed his interference with and claim, to it, and insisted upon its right to have it applied to the payment of its claim against Johnson. The appellee denied its claims, and thus drove it to bring this action to assert its rights. The appellee made defence in good faith, not at the request or instance of the plaintiff, but against its will, and for the benefit of those creditors of Johnson whose debts were provided for and secured by the deed of trust, and to prevent and defeat the plaintiff’s recovery. The counsel employed and paid by the appellee were employed for that express purpose, and in no sense for the benefit or advantage of the plaintiff. Shall the latter be thus required to pay the counsel of the defendant to defeat its right and its action ? •
But it is said it was the duty of the trustee to resist the plaintiff’s demands, and he ought in doing so to be allowed his reasonable outlay for counsel. This may be granted, but at whose cost? Surely not at that of the plaintiff, whose right he was contesting, but plainly at the cost of the creditors interested in increasing the trust fund out of which their debts were to be paid.
*234The appellee in good faith, under a misapprehension of his right to do so, sold the guano, and had in hand the proceeds of the sale. For his services in selling it, he was allowed compensation, and the plaintiff did not object, upon the just ground, no doubt, that it ought to pay for such services as it had the benefit of, but such proceeds of sale were no part of the trust fund, nor were they affected by the trust the appel-lee was charged with by the deed, certainly, as they were insufficient to pa}' the claims of the plaintiff.
We cannot hesitate to decide that the allowance complained of was unwarranted, and the judgment must, as to it, be reversed.
It is further assigned as error, that the Court directed the trustee to pay his part of the costs of this action out of the fund in his hands referred to above. We do not so understand the judgment: it directs such costs to be paid out of any funds in his hands as trustee of the deed of trust. Otherwise, there would be error. The appellee is not a trustee of an express trust as to the plaintiff in this action, and is not entitled, as against him, to the benefit of the statute. (The Code, § 535).
There is error. Error.