Shuford v. . Yarborough

147 S.E. 824, 197 N.C. 150, 1929 N.C. LEXIS 174

Opinion

Stacy, O. J.

The demurrer was properly overruled on both grounds. C. S., 507 and annotations.

A “defect of parties” applies to necessary parties, and not to unnecessary ones. Winders v. Hill, 141 N. C., 694, 54 S. E., 440.

It is not a misjoinder of parties and causes for the receiver of a corporation to sue its president and treasurer for wrongfully abstracting and misappropriating funds of the corporation and at the same time join as party defendant his surety or the guarantor of his honesty and fidelity. Carswell v. Talley, 192 N. C., 37, 133 S. E., 181; Robinson v. Williams, 189 N. C., 256, 126 S. E., 621; Chemical Co. v. Floyd, 158 N. C., 455, 74 S. E., 465; S. v. Bank, 193 N. C., 524, 137 S. E., 593.

The case of Clark v. Bonsal, 157 N. C., 270, 72 S. E., 954, is not in point, for there the contract between the defendants was one of strict indemnity against “loss actually paid.” The allegations of the present complaint are to the effect that the defendant, Eagle Indemnity Company, “guarantees the fidelity of the president and treasurer of the Y. & B. Corporation in the sum of $10,000, . . . and agrees to make good any loss sustained by reason of his dishonesty, theft or wrongful abstraction,” etc., and that loss has already been sustained within the terms of the contract of guaranty.

Affirmed.