Brock & Scott Produce Co. v. Brock

118 S.E. 798, 186 N.C. 54, 1923 N.C. LEXIS 172

• Court: Supreme Court of North Carolina
• Decided: September 12, 1923
• Status: Published

Opinion

Stacy, J.

On 1 May, 1922, the defendant gave to Swift & Company a sixty-day note for $380 in payment for certain commercial fertilizers which he had purchased from said Swift & Company through its agent, Brock & Scott Produce Company. This note was endorsed, or payment guaranteed, by Brock & Scott Produce Company. The present action is to enforce collection of said note, default having been made in the payment of same at maturity and after demand.

The basis of the defendant’s demurrer is that there is a misjoinder, both of parties plaintiff and of causes of action, and for this position he relies upon the cases of Shore v. Holt, 185 N. C., 312; Roberts v. Mfg. Co., 181 N. C., 204; Thigpen v. Cotton Mills, 151 N. C., 97, and others to like effect. But the plaintiffs have set up and alleged in their complaint a single cause of action, rather than two separate causes, as interpreted by the defendant. It is not alleged that Brock & Scott Produce Company has paid any part of said note, and, therefore, it is entitled to recover of defendant as a guarantor who has been required to pay, separately and distinct from the right of Swift & Company, the payee, to enforce collection, but the allegation of the complaint is.that both plaintiffs are the owners of said note, and that the same is now due and unpaid.

For the purpose of a demurrer, the allegations contained in the preceding pleadings are to be taken as correct and as made. Davies v. Blomberg, 185 N. C., 496; Sandlin v. Wilmington, 185 N. C., 257. We think the demurrer in the instant case was properly overruled.

Affirmed.