Plaintiff seeks to enforce a derivative right, but its evidence falls short of proving the basic contract as alleged between defendant and the Tryon Development Company. Gorrell v. Water Co., 124 N. C., 328, 32 S. E., 720; 6 R. C. L., 886. For this reason, the judgment of nonsuit is correct.

But going further, it would seem that the defendant’s plea of res judicata is also well founded. Distributing Co. v. Carraway, 196 N. C., 58, 144 S. E., 535.

Affirmed.