Shore v. . Holt

117 S.E. 165, 185 N.C. 312, 1923 N.C. LEXIS 72

• Court: Supreme Court of North Carolina
• Decided: April 18, 1923
• Status: Published

Opinion

Stacy, J.

Tbe feme plaintiff alleges that in 1908 she was a ward of tbe Children’s Home Society of North Carolina, Inc., — being only ten years old at that time — and that she was induced to go and live in tbe home of tbe defendant with tbe assurance that she, tbe feme plaintiff, would be adopted as a child of tbe defendant and thereby become entitled to receive, at tbe death of tbe defendant, a child’s share of her estate. Tbe plaintiff, relying upon this promise, changed her name, went into tbe home of tbe defendant and rendered every kind of service required of her by tbe defendant. She alleges that she cooked, washed dishes, milked the cow, nursed tbe defendant’s husband in bis sickness, attended to many of tbe chores about tbe bouse, worked in the cotton mill and in tbe cigar factory and turned over her wages to tbe defendant.

On 1 August, 1915, tbe feme plaintiff was married to Charles Shore, wb'o also worked for tbe defendant for a period of eight months immediately thereafter. Plaintiff later learned that she bad not been legally adopted by tbe defendant, and it is alleged that tbe defendant has now disavowed her intention to carry out her promise.

The feme plaintiff brings this action to recover upon a quantum meruit for the value of the services rendered by her to the defendant under the promise of reward as above set out. Por the right to maintain her action, she relies upon the line of casés of which the following are representative: Hayman v. Davis, 182 N. C., 563; McCurry v. Purgason, 170 N. C., 463; Debruhl v. Trust Co., 172 N. C., 839; Patterson v. Franklin, 168 N. C., 75; Winkler v. Killian, 141 N. C., 575; Whetstine v. Wilson, 104 N. C., 385; Miller v. Lash, 85 N. C., 51.

Charles Shore is joined as a coplaintiff with bis wife; and, in tbe present suit, coupled with bis wife’s complaint, be has set up a separate and independent cause of action for services rendered by him and for an accounting for tbe eight months be was with tbe defendant.

The basis of the demurrer is that there is a misjoinder, botb of parties and of causes of action. Where this occurs, it has been held with us that the demurrer should be sustained and the action dismissed. Roberts v. Mfg. Co., 181 N. C., 204; Thigpen v. Cotton Mills, 151 N. C., 97. Clearly, the two causes of action are separate and distinct; and, if the feme plaintiff’s husband has been improperly joined as a party plaintiff in her suit, the demurrer should be sustained and the action dismissed under authority of tbe cases just cited. But if tbe joinder of tbe bus-band, as a formal party, in tbe wife’s suit, is a matter of no special moment, as was said in Patterson v. Franklin, 168 N. C., 77, it would seem that sbe should be allowed to proceed on her cause of action with tbe allegations of her husband stricken from tbe complaint.

When several causes of action have been improperly united, tbe Court may sustain tbe demurrer and permit tbe defect to be cured by amendment, or order a division, upon such terms as are just, under authority of C. S., 516. Gattis v. Kilgo, 125 N. C., 133.

True, in Lipinsky v. Revell, 167 N. C., 508, it was said that tbe bus-band was not a necessary or even a proper party to an action of this kind, but this was unnecessary to tbe decision in that case and hence tbe statement that be was an improper party must be considered as no more than an obiter dictum. That be is not a necessary party is established by all tbe decisions on tbe subject (C. S., 2513), but in Sandlin v. City of Wilmington, ante, 257 it was suggested, on tbe peculiar facts there presented, that tbe husband might not be an improper party in an action brought by bis wife to abate a nuisance. See, also, Craddock v. Brinkley, 177 N. C., 127; Kirkpatrick v. Crutchfield, 178 N. C., 352, and Price v. Electric Co., 160 N. C., 450.

While tbe demurrer should have been sustained for a misjoinder of tbe two causes of action, we are of opinion that tbe feme plaintiff’s suit should not be dismissed.

In the present condition of the pleadings, we will remand the cause for further action along the lines suggested in this opinion; such procedure being permitted in the exercise of our discretion. Huggins v. Waters, 154 N. C., 444.

Let one-half tbe costs of this appeal be taxed against tbe plaintiffs and one-balf against tbe defendant.

Remanded.