Rose v. Fremont Warehouse & Improvement Co., 182 N.C. 107 (1921)

Oct. 5, 1921 · Supreme Court of North Carolina

182 N.C. 107

W. P. ROSE v. FREMONT WAREHOUSE AND IMPROVEMENT COMPANY et al.

(Filed 5 October, 1921.)

Actions — Parties—Subject-matter—Misj oincler — Severance.

A contractor sued tbe owner for tbe contract price of tbe building and tbe latter bad tbe architects made parties and then answered setting up an offset or counterclaim up'on allegation tbat certain damages were caused either by faulty construction or fault of tbe architects in their plans and specifications, without allegation tbat tbe architects in any manner bad charge of or participated in tbe construction of the building, to which tbe architect demurred upon tbe ground of misjoinder of parties and causes of action: Held, a demurrer was good, and a severance of tbe causes could not be ordered. O. S., 607.

Appeal by defendant from Lyon, J., at May Term, 1921, of WayNE.

Civil action, brought by plaintiff, a contractor, to recover tbe balance due on a building contract. Upon motion of tbe defendant, Fremont Warehouse & Improvement Company, tbe architects, Benton & Benton, who drew tbe plans 'and, specifications for said buildings, were made parties defendant. Tbe original defendant then answered, admitted tbe plaintiff’s contract; but set up by way of cross action and counterclaim tbe following:

“That by tbe terms of tbe contract entered into between tbe plaintiff and this defendant the plaintiff agreed to have said buildings constructed in a proper and workmanlike manner, which, as this defendant is informed and believes, be failed to do, in that tbe roof trusses of both of said tobacco warehouses were improperly constructed by tbe plaintiff, and that by reason of said defective construction tbe said trusses have buckled, thereby rendering tbe roofs of said warehouses unsafe and dangerous, and thereby rendering said buildings defective and unwork-manlike in their construction; or that if tbe buckling of tbe trusses is not caused by improper and unworkmanlike construction by said plaintiff, it is due to tbe defective plans and specifications prepared and delivered by said defendants, Benton & Benton; and that by reason of tbe said improper and unworkmanlike construction, or by reason of tbe defective plans and specifications, or by reason of both tbe improper and unworkmanlike construction and tbe defective plans and specifications, this defendant is damaged in tbe sum of $20,000.”

Benton & Benton demurred to this pleading upon tbe ground of a misjoinder of parties and causes of action. Tbe demurrer was sustained, and tbe defendant, Fremont Warehouse & Improvement Company, appealed.

No counsel for plaintiff.

iE. M. Land and Diclcinson & Freeman for Fremont Warehouse $ Improvement Company.

W. A. Lucas and Langston, Allen & Taylor for Benton & Benton.

Staoy, J..

It will be observed from tbe allegations of tbe defendant’s cross action and counterclaim that tbe architects, who furnished tbe plans and specifications, did not undertake to superintend tbe erection and construction of tbe buildings. Their agreement called for tbe preparation and delivery of tbe plans and specifications and no more. Tbe buildings were constructed by tbe plaintiff, but without assistance from or consultation with tbe architects. There is no allegation of any privity of contract or community of interests between tbe contractor and tbe architects. Indeed, they seem to have been employed at different times and for different purposes. Therefore, tbe defendant’s cross action against Benton & Benton is based upon one contract and its counterclaim against the plaintiff is founded upon another. The two causes of action are separate and distinct; they are set up against different parties, and they are incorporated in the same pleading. This is demurrable. Roberts v. Mfg. Co., 181 N. C., 204; Lee v. Thornton, 171 N. C., 209; Cromartie v. Parker, 121 N. C., 198; Quarry Co. v. Construction Co., 151 N. C., 345, and eases cited.

The several causes of action which may be united or joined in the same complaint are classified and enumerated in O. S., 507; and, in addition, the following limitation is expressly incorporated therein: “But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated,” Under a proper interpretation of this section, we think his Honor’s ruling sustaining the demurrer must be upheld.

But it is contended that if the two causes of action have been improperly united in the same pleading, his Honor should have ordered a separation or division under O. S., 516. It is well settled by a number of decisions that this cannot be done where there is a misjoinder of both parties and causes of action. Roberts v. Mfg. Co., supra; Morton v. Tel. Co., 130 N. C., 299; Thigpen v. Cotton Mills, 151 N. C., 97; Campbell v. Power Co., 166 N. C., 488.

Upon the record we think his Honor was correct in sustaining the demurrer and dismissing the defendant’s cross action as to Benton & Benton in this particular proceeding.

Affirmed.