Virginia Trust Co. v. Webb

173 S.E. 598, 206 N.C. 247, 1934 N.C. LEXIS 153

• Court: Supreme Court of North Carolina
• Decided: March 21, 1934
• Status: Published

Opinion

Adams, J.

The demurrer admits the complaint and must be overruled if the allegations are sufficient to constitute a cause of action. Yarborough v. Park Commission, 196 N. C., 284; Meyer v. Fenner, ibid., 476.

The appellants take the position that Bynum has no interest in the action because his assignment to the Virginia Trust Company was complete; that if the option executed by the defendants was assignable the Trust Company has acquired all rights thereunder and Bynum has none. It is hence argued that Bynum is not a necessary or proper party in an action brought by the Trust Company on the assignment, that the Trust Company is not a necessary or proper party in an action brought by Eynum on his contract with the defendants, and that the demurrer should be sustained and the action dismissed.

This argument ignores the fact that according to the plaintiffs’ allegations and the written assignments Bynum did not relinquish his interest in the option; he assigned it as collateral security for the payment of the notes. (Exhibit D.) The complaint states a cause of action in which both plaintiffs have an interest. Let us assume for the moment, however, that the action could be maintained by one of the plaintiffs. The joinder of unnecessary parties is not a defect of parties; and for superfluous parties plaintiff, a demurrer does not lie. An action is dismissed for misjoinder only when there is a misjoinder of parties and causes. Furniture Co. v. R. R., 195 N. C., 636; Abbott v. Hancock, 123 N. C., 99.

The appellants say that the contract growing out of Bynum’s acceptance of the option was not assignable. If this be conceded, Bynum retains his interest and can maintain an action against the defendants, his coplaintiff being merely an unnecessary party. It is insisted, however, that this Court has resolved the question against the position of the defendants. R. R. v. R. R., 147 N. C., 368; Trust Co. v. Williams, 201 N. C., 464.

It is contended further that the complaint does not state a cause of action in that neither of the plaintiffs is entitled to specific performance of the contract or to the relief demanded. The contract relates to personal property and in such case specific performance as a general rule will not be decreed; but there are recognized exceptions. Jurisdiction to enforce specific performance rests, not on the distinction between real and personal property, but on the ground that damages at law will not afford a complete remedy. Paddock v. Davenport, 107 N. C., 710; Tobacco Association v. Battle, 187 N. C., 260. The nature of an action is determined by the allegations in the complaint, not by the prayer for relief. A plaintiff may recover any relief to which he is entitled upon the facts alleged in his complaint and established by his proof. Jones v. R. R., 193 N. C., 590. Here the allegations are broad enough to set out two causes of action as in Paddock v. Davenport, supra — specific performance and breach of contract. If either can be maintained the judgment must be overruled. Bynum’s acceptance of the option within the stipulated period consummated a contract to the performance of which he and the defendants were mutually bound. Paddock v. Davenport, supra.

Affirmed.

ClaeKsON, J., not sitting.