Watson v. . King

156 S.E. 93, 200 N.C. 8

• Court: Supreme Court of North Carolina
• Decided: December 10, 1930
• Status: Published

Opinion

Adams, J.

The appellant is in error in assuming that a judgment must be recovered against King, or the amount of his liability definitely determined, before the action can be maintained against Pace Lumber Company. The condition of the bond is King’s faithful performance of the contract, and the appellant is a proper party to a complete determination or settlement of the question involved. C. S., 456. The same general relief is sought against both defendants and their presence is necessary to a complete adjustment of the controversy. As stated in Bank v. Harris, 84 N. C., 206, the dominant purpose of the statute is to make one proceeding adjust and settle all controversies affecting its subject-matter. Wofford v. Hampton, 173 N. C., 686. The case of Clark v. Bonsal, 157 N. C., 270, cited by the appellant, is not in point.

The second ground is likewise untenable. The demurrer admits the allegation that the corporation executed the bond and became liable to the plaintiffs. Confronted with this admission the corporate defendant cannot invoke the doctrine of ultra vires by demurring to the complaint. The charter of the corporation is the only source to which the Court can look to ascertain what powers are conferred and the charter is not set out in the complaint. Victor v. Mills, 148 N. C., 107, 112. Judgment

Affirmed.