It is not denied by the plaintiff that the defendant paid $500 in 1893, which inured to the benefit of her husband, but she contends that the payment was not made at her request; that it was not in satisfaction pro tanto of the amount due to her under the contract between the defendant and his wife, and that it was not paid for the purpose of discharging a mortgage on the land conveyed to her husband.
It therefore appears that the evidence of Mr. and Mrs. Rankin was important and material on the only controverted facts submitted to the jury, and this evidence falls within the rule excluding hearsay evidence, and is not covered by any of the exceptions to the rule.
Mr. and Mrs. Rankin, in effect, testified that they heard Mrs. Jones, wife of the defendant, say, in the absence of the plaintiff, that the $500 was to come out of the contract.
The rule,’ with the exceptions and the comment of the Court in King v. Bynum, 137 N. C., 495, cited in Lockhart’s Evidence, sec. 138, are directly applicable to the evidence in this record, erroneously admitted. The Court says in that ease: “ ‘Evidence oral or written, is called hearsay when its probative force depends in whole or in part upon the competency and credibility of some person other than the witness by whom it- is sought to produce it.’ 11 A. and E. Enc. (2 Ed.), 520, ,and cases cited; Coleman v. Southwick, 9 Johns. (N. Y.), 45; S. v. Haynes, 71 N. C., 79. There are exceptions to this general rule excluding hearsay evidence laid down in the text-writers on evidence, such as admissions, confessions, dying declarations, declarations against interest, ancient documents, declarations concerning matters of public interest, matters of pedigree, and the res gestas. The most ingenious mind can hardly bring the testimony pointed out' within any recognized exception to the general rule excluding hearsay evidence. 1 Greenleaf Ev., ch,. 6 (IS Ed.), gives the recognized exceptions to the general rule.”
There must be a new trial on account of the error pointed out, and as this is the second appeal in the action and the amount in controversy is in danger of being consumed by the litigation, in order *429that all matters in controversy be settled, the defendant may move the court to be permitted to make the husband of the plaintiff a party and to amend his answer, and it is directed that the following issues be submitted at the last trial:
1. Did the defendant lend to or advance at the request of A. D. Chandler any money, and if so, when and how much?
2. If so, was said money lent or advanced for the purpose of paying off and satisfying a mortgage on the land conveyed to the said Chandler by one Lambeth, and was it so used?
3. If so, was said money lent or advanced at the request of the plaintiff Eula Chandler ?
4. If so, was said money lent or advanced as a payment on the amount due under the contract entered into between the defendant and wife ?
5. If so, did the plaintiff Eula Chandler know that said amount was lent or advanced as .a payment on said contract, and that it was to be used in satisfying said mortgage?
When these facts are ascertained by the verdict of a jury the rights of the parties can be determined under the former opinion of this Court.
If answered in favor of the defendant, he will be entitled to a credit on his contract, or to subrogation; and if against him, the plaintiff will have judgment for the full amount due under the conti'act.
The motion of the defendant to dismiss the action upon the ground that the plaintiff is not a party to the contract on which she sues cannot be sustained, as “One not a party or privy to a contract, but who is a beneficiary thereof, is entitled to maintain an action for its breach.” Gorrell v. Water Co., 124 N. C., 333, and cases cited.
New trial.