#### J. P. MERCER and WILEY W. UPTON, Individually and Partners, Trading as FARMERS SUPPLY COMPANY, v. NEW AMSTERDAM CASUALTY COMPANY.

(Filed 24 February, 1937.)

Insurance § 48 — Lienholder on truck damaged by third person held not entitled to enforce payment against third person’s insurei*.

Plaintiffs held a lien on a truck damaged by the negligence of the driver of a truck belonging to a third person who carried indemnity insurance on his truck. Although insurer had notice of plaintiffs’ lien and the owner of the negligently damaged truck had agreed that check be made payable *289to him and plaintiffs jointly, insurer paid the owner of the truck, who failed to pay plaintiffs’ lien from the proceeds. *Meld:*Insurer was not a tort-feasor, nor obligated by its contract with the owner of the truck negligently causing the damage to pay lienholders on the truck negligently damaged, and plaintiffs are not entitled to enforce payment against insurer either in contract or in tort in the absence of fraud or collusion.

Appeal by plaintiffs from *Small, J.,*at November Term, 1936, of PasquotaNK.

Affirmed.

At tbe conclusion of plaintiffs’ evidence motion for judgment of non-suit was allowed, and plaintiffs appealed.

*John H. Hall for plaintiffs.*

*S. Burnell Bragg and Thompson ■& Wilson for defendant.*

Pee CtjRiam.

Tbe evidence offered by plaintiffs tended to sbow a fact situation substantially as follows :

A motor truck owned by one M. C. Love was damaged as tbe result of a collision witb a truck belonging to one J. S. Wiggins. Tbe plaintiffs beld a lien, by virtue of a registered conditional sales contract, on tbe Love truck. At tbe time of tbe injury Wiggins beld a policy of insurance issued by defendant casualty company, indemnifying bim against liability arising out of tbe operation of tbe Wiggins truck. A representative of tbe defendant, wbo was investigating tbe matter of tbe casualty company’s liability under its policy and negotiating a compromise settlement thereof on bebalf of Wiggins, in accordance witb defendant’s insurance contract witb Wiggins, bad a conversation witb one of plaintiffs and was advised tbat plaintiffs beld a lien on tbe Love truck, and witb tbe consent of Love request was made tbat check for settlement of damages to tbe Love truck be sent to plaintiffs and Love jointly, tbe amount of damages being in excess of amount of plaintiffs’ lien. To this request tbe representative of defendant made no reply.

Subsequently, defendant paid tbe amount of tbe damages for injury to tbe Love truck to Love, wbo executed release therefor. This amount Love used for bis own purposes without repaying plaintiffs’ debt.

Thereupon plaintiffs instituted their action to recover of defendant casualty company tbe amount of their debt against Love, which was secured by tbe conditional sales contract covering said truck.

Under tbe evidence presented in this case, can tbe plaintiffs maintain their action against tbe casualty company? Tbe answer is “No.”

The defendant’s contract was with Wiggins. It was one of indemnity only. *Clark v. Bonsal,*157 N. C., 270; *Scott v. Bryan,*210 N. C., 478.

The evidence negatives the suggestion of a contract by the defendant to pay the amount of the damage to the plaintiffs, nor does it appear that *290defendant’s representative bad authority to make such a contract. The defendant was not a tort-feasor. The defendant was under no legal duty to protect the plaintiffs, and assumed no obligation to do so. There was no evidence of fraud or collusion.

So that neither in contract nor in tort are plaintiffs entitled to maintain their action against the casualty company.

The release executed by Love, the mortgagor, to Wiggins, the tort-feasor, and his insurer, would ordinarily bar the mortgagees, the plaintiffs *(Harris v. R. R.,*190 N. C., 480), and there is nothing in the record here to take this case out of the rule there laid down.

The cases cited by appellants in support of their position *(Miller v. Hortman-Salem, Co.,*145 Sou., 786 [La.], and *Commercial Securities Co. v. Mast,*28 P. [2d], 635), were actions by mortgagees against, tort-feasors.

Judgment affirmed.