Brock & Scott Produce Co. v. Brock, 186 N.C. 54 (1923)

Sept. 12, 1923 · Supreme Court of North Carolina

186 N.C. 54

BROCK & SCOTT PRODUCE COMPANY and SWIFT & COMPANY v. C. A. BROCK.

(Filed 12 September, 1923.)

1. Actions — Misjoinder—Parties—Causes' of Action.

An action brought by the payee of a negotiable note, and the endorser, against the maker, who has defaulted in payment, alleging ownership of the note sued on, is not a misjoinder of causes of action or parties, but a single cause of action by both plaintiffs against the defendant, and a demurrer on that ground is bad.

2. Pleadings — Demurrer—Allegations oí Complaint.

Upon, demurrer to a' complaint, tke allegations therein are taken for the purpose as correct and as made.

Appeal by defendant from Connor, J., at March Term, 1923, of PasquotaNK.

Civil action to recover upon a promissory note, given to Swift & Company by the defendant, and endorsed, or payment guaranteed, by Brock & Scott Produce Company.

Tbe defendant demurred upon the ground that there was a misjoin-der, both of parties and of causes of action. Demurrer overruled. Defendant excepted and appealed.

R. C. Lawrence, W. L. Small, and Ehringhaus & Hall for plaintiffs.

Aydlett & Simpson for defendant.

Stacy, J.

On 1 May, 1922, the defendant gave to Swift & Company a sixty-day note for $380 in payment for certain commercial fertilizers which he had purchased from said Swift & Company through its agent, Brock & Scott Produce Company. This note was endorsed, or payment guaranteed, by Brock & Scott Produce Company. The present action is to enforce collection of said note, default having been made in the payment of same at maturity and after demand.

The basis of the defendant’s demurrer is that there is a misjoinder, both of parties plaintiff and of causes of action, and for this position he relies upon the cases of Shore v. Holt, 185 N. C., 312; Roberts v. Mfg. Co., 181 N. C., 204; Thigpen v. Cotton Mills, 151 N. C., 97, and others to like effect. But the plaintiffs have set up and alleged in their complaint a single cause of action, rather than two separate causes, as interpreted by the defendant. It is not alleged that Brock & Scott Produce Company has paid any part of said note, and, therefore, it is entitled to recover of defendant as a guarantor who has been required to pay, separately and distinct from the right of Swift & Company, the payee, to enforce collection, but the allegation of the complaint is.that both plaintiffs are the owners of said note, and that the same is now due and unpaid.

For the purpose of a demurrer, the allegations contained in the preceding pleadings are to be taken as correct and as made. Davies v. Blomberg, 185 N. C., 496; Sandlin v. Wilmington, 185 N. C., 257. We think the demurrer in the instant case was properly overruled.

Affirmed.