Rose v. Fremont Warehouse & Improvement Co.

108 S.E. 389, 182 N.C. 107, 1921 N.C. LEXIS 188

• Court: Supreme Court of North Carolina
• Decided: October 5, 1921
• Status: Published

Opinion

Staoy, J..

It will be observed from tbe allegations of tbe defendant’s cross action and counterclaim that tbe architects, who furnished tbe plans and specifications, did not undertake to superintend tbe erection and construction of tbe buildings. Their agreement called for tbe preparation and delivery of tbe plans and specifications and no more. Tbe buildings were constructed by tbe plaintiff, but without assistance from or consultation with tbe architects. There is no allegation of any privity of contract or community of interests between tbe contractor and tbe architects. Indeed, they seem to have been employed at different times and for different purposes. Therefore, tbe defendant’s cross action against Benton & Benton is based upon one contract and its counterclaim against the plaintiff is founded upon another. The two causes of action are separate and distinct; they are set up against different parties, and they are incorporated in the same pleading. This is demurrable. Roberts v. Mfg. Co., 181 N. C., 204; Lee v. Thornton, 171 N. C., 209; Cromartie v. Parker, 121 N. C., 198; Quarry Co. v. Construction Co., 151 N. C., 345, and eases cited.

The several causes of action which may be united or joined in the same complaint are classified and enumerated in O. S., 507; and, in addition, the following limitation is expressly incorporated therein: “But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated,” Under a proper interpretation of this section, we think his Honor’s ruling sustaining the demurrer must be upheld.

But it is contended that if the two causes of action have been improperly united in the same pleading, his Honor should have ordered a separation or division under O. S., 516. It is well settled by a number of decisions that this cannot be done where there is a misjoinder of both parties and causes of action. Roberts v. Mfg. Co., supra; Morton v. Tel. Co., 130 N. C., 299; Thigpen v. Cotton Mills, 151 N. C., 97; Campbell v. Power Co., 166 N. C., 488.

Upon the record we think his Honor was correct in sustaining the demurrer and dismissing the defendant’s cross action as to Benton & Benton in this particular proceeding.

Affirmed.