Daniels v. Duck Island, Inc.

Supreme Court of North Carolina

Daniels v. Duck Island, Inc.

212 N.C. 90

DecidedSeptember 22, 1937

StatusPublished

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Daniels v. Duck Island, Inc., 212 N.C. 90 (N.C. 1937).

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Opinion

Per Curiam.

We think the court below correct in its judgment in overruling defendants’ demurrer. We think the case of Barkley v. Realty Co., 211 N. C., 540 (542), is controlling. It is there written: “It is provided by statute in this State that The plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, [93]*93or both, when tbey all arise out of the same transaction, or transaction connected with, the subject of the action.’ C. S., 507. Construing the provisions of this statute, it has been uniformly held by this Court that if the causes of action united in the same complaint be not entirely distinct and unconnected, if they arise out of one and the same transaction, or a series of transactions forming one course of dealing, and all tending to one end, if one connected story can be told of the whole, the objection that there is a misjoinder of causes of action in the same complaint, although aptly made by demurrer to the complaint (C. S., 511 [5]), will not be sustained. In such ease, the demurrer will be overruled,” citing numerous authorities. Leach v. Page, 211 N. C., 622; Bank v. Jones, 211 N. C., 317.

In Whitehurst v. Hyman, 90 N. C., 487 (489), we find: “It is settled by many judicial decisions in construing this statute (C. S., 987), and others substantially like it, that where there is some new and original consideration of benefit or harm moving between the party to whom the debt to be paid is due, and the party making the promise to pay the same, such case is not within the statute; as where a promise to pay an existing debt is made in consideration of property placed by the debtor in the hands of the party promising, . . . such promises are not within the statute, because they are not made Ho answer the debt, default, or miscarriage of another person.’” Jennings v. Keel, 196 N. C., 675 (680-681).

For the reasons given, the judgment of the court below is

Affirmed.

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Per Curiam.

We think the court below correct in its judgment in overruling defendants’ demurrer. We think the case of Barkley v. Realty Co., 211 N. C., 540 (542), is controlling. It is there written: “It is provided by statute in this State that The plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, [93]*93or both, when tbey all arise out of the same transaction, or transaction connected with, the subject of the action.’ C. S., 507. Construing the provisions of this statute, it has been uniformly held by this Court that if the causes of action united in the same complaint be not entirely distinct and unconnected, if they arise out of one and the same transaction, or a series of transactions forming one course of dealing, and all tending to one end, if one connected story can be told of the whole, the objection that there is a misjoinder of causes of action in the same complaint, although aptly made by demurrer to the complaint (C. S., 511 [5]), will not be sustained. In such ease, the demurrer will be overruled,” citing numerous authorities. Leach v. Page, 211 N. C., 622; Bank v. Jones, 211 N. C., 317.

In Whitehurst v. Hyman, 90 N. C., 487 (489), we find: “It is settled by many judicial decisions in construing this statute (C. S., 987), and others substantially like it, that where there is some new and original consideration of benefit or harm moving between the party to whom the debt to be paid is due, and the party making the promise to pay the same, such case is not within the statute; as where a promise to pay an existing debt is made in consideration of property placed by the debtor in the hands of the party promising, . . . such promises are not within the statute, because they are not made Ho answer the debt, default, or miscarriage of another person.’” Jennings v. Keel, 196 N. C., 675 (680-681).

For the reasons given, the judgment of the court below is

Affirmed.

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212 N.C. 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniels-v-duck-island-inc-nc-1937.

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