Perry v. . Swanner

63 S.E. 611, 150 N.C. 141, 1909 N.C. LEXIS 9

Opinion

Brown, J.

It. is contended that a defect in parties can be taken advantage of only by demurrer, and that the objection comes too late at the close of plaintiff’s evidence.

It is not a question of parties, as we understand the matter, that is raised by the motion to nonsuit, but a question as to whether or not the plaintiff has made out a cause of action upon which be personally can recover. There is only one plaintiff to this action, and the fact that be sues to the use of a number of others who furnished material to defendants for the construction of* the bouse does not necessarily make them parties, so as to be bound by a final judgment.

The plaintiff does not allege that be is trustee of an express trust, and bad be alleged it be does not offer any proof to sustain it. Clark’s Code, sec. 179.

Mere authority to collect the debts due the material men would not constitute the plaintiff a trustee of an express trust, within the meaning of the statute, so as to authorize him to maintain a suit in bis own name on behalf of bis cestuis que trust. Abrams v. Qureton, 74 N. C., 523; Battle v. Davis, 66 N. C., 252. Tbe plaintiff testified that be furnished to defendants written statements of the sums due to the material men, in* accordance with the statute (Revisal, secs. 2021, 2022, 2023). When that statute is complied with,' a direct obligation upon the part of the owner to the material man may be created, upon which the latter may sue in bis own name.

Tbe judgment of nonsuit is

Affirmed.