Notice of appeal was given by the plaintiff from the ruling of the trial judge that the testimony of C. Eoy Griffin was competent. The appeal, however, on this phase of the case was not perfected, and no point is made in the brief with respect thereto. Hence this aspect is eliminated. Consequently the sole question relates to the competency of the conversation between C. Griffin and the plaintiff’s agent, Eeason, by virtue of the application of C. S., 1795. Many years ago the stream of interpretation of C. S., 1795 forked. One branch was made up of cases coming within the letter of C. S., 1795, or the express words of the statute. The other branch was made up of cases coming within the spirit of said statute. The case at bar lies in the latter branch and is represented by such decisions as Bryant v. Morris, 69 N. C., 444; McGowan v. Davenport, 134 N. C., 526, 47 S. E., 27, and Honeycutt v. Burleson, 198 N. C., 37, 150 S. E., 634. These cases proceed upon the theory that C. S., 1795, not only applies to parties but to any person having a pecuniary interest in the result of the action.
Did Eeason have such a pecuniary interest so far as the defendant, C. Griffin, is concerned as to render the evidence incompetent? Both were guarantors of the payment of the note of C. Eoy Griffin. The sole consideration for the guaranty of C. Griffin was the furnishing of fertilizer to his son on open account, for the year 1929. The jury found that the plaintiff breached the contract, and hence there was a total failure of consideration for the guaranty of Griffin. Consequently he was released. Chemical Co. v. Griffin, 202 N. C., 812, 164 S. E., 577; Trust Co. v. Clifton, 203 N.C., 483.
If 0. Griffin had lost and been compelled to pay the note, obviously there was no claim he could assert against Eeason or his estate after his death, vis C. Griffin wins and is thereby released, can the plaintiff maintain a suit against Eeason or his estate by virtue thereof? Manifestly, the release of C. Griffin was the result of the wrongful act of the plaintiff, and the law does not permit a creditor to profit by his own wrong or to breach a contract and thereby release one guarantor and at the same time hold another.
Therefore, the court is of the opinion that the evidence was competent, and that judgment should be entered upon the verdict.
Eeversed.