Taylor v. Schaub, 225 N.C. 134 (1945)

April 18, 1945 · Supreme Court of North Carolina

225 N.C. 134

L. E. TAYLOR v. C. S. SCHAUB, APEX TRANSPORTATION, INC., and AMERICAN TRUST COMPANY.

(Filed 18 April, 1945.)

1. Pleadings § 16c: Judgments § 32—

The relief sought by T. in a former action by S. against T., in another county, being for an accounting between defendant T. and plaintiff S., arising out of an alleged breach of contract for lease by S. to T. of certain truck operating rights, and the relief asked for by plaintiff T. in the instant case being for a restraining order against defendant S. and other defendants in favor of T. to preserve alleged rights of T. in the same truck operating franchise, any judgment rendered in the former case would not afford the relief sought in the latter case; nor would a judgment in the former be res judicata in the latter.

2. Abatement and Revival § 9: Judgment § 82—

Where a judgment in a pending action would not support a plea of res judicata in a second action, and the two actions are not the same and the results sought are dissimilar, a plea in abatement in the second action, on the ground that another action between the parties was then pending, is properly overruled.

Appeal by defendant Sohaub from Williams, J., at December Term, 1944, of DupliN.

The plaintiff alleged that he was “the owner of certain operating rights by virtue of which he was permitted to do a transportation business by operating a fleet of trucks in Interstate Commerce”; that on or about 27 August, 1941, the plaintiff, L. E. Taylor, and the defendant, C. S. Sehaub, entered into a contract the result of which was that an application was made to the Interstate Commerce Commission for approval of the transfer of the operating authority referred to from L. E. Taylor to C. S. Sehaub, which application was approved by said Commission on 13 September, 1941, and upon such approval $3,450.00 became due under said contract to the plaintiff by the defendant Sehaub, as well as the obligation by said defendant to furnish the plaintiff leases for the operation by the plaintiff of his trucks in interstate commerce as lessee of said defendant; that said defendant has never paid to the plaintiff the amount he was obligated to pay nor performed the other obligations placed upon him by said contract; but that said defendant did on 13 April, 1943, lease and transfer said operating rights to Apex Transportation, Inc., and did give to said corporation at the same time an option to purchase said operating authority, and thereby failed to preserve to the plaintiff the right to operate his trucks, as lessee, under said contract, and said defendant failed to perform any of the obligations to the plaintiff placed upon him by said contract; and that if the option to purchase be exercised by the Apex Transportation, Inc., the plaintiff would be permanently deprived of all his rights under said contract between him and the defendant Sehaub ;• that the plaintiff did not know of the purported transfer and lease from said defendant to the Apex Transportation, Inc., until several weeks after they had been bargained for, and, upon learning thereof, the plaintiff immediately notified said Apex Transportation, Inc., not to pay to the defendant Sehaub any future rents under its lease; that plaintiff is advised and informed, and so alleges, that under stipulation between the parties, rentals have been put in escrow with the American Trust Company and that it now holds several thousand dollars subject to the check of the Apex Transportation, Inc., and of C. S. Schaub, if and when it is finally decided that said Schaub is entitled to the rental proceeds; that while these funds were being accumulated the plaintiff requested the Interstate Commerce Commission to reopen the case wherein the transfer of the operating authority from the plaintiff Taylor to the defendant Schaub was approved, but said commission refused to so reopen said case; that the plaintiff is advised and believes, and therefore avers that he, the plaintiff, is entitled to have said operating rights transferred back to him by the defendant Schaub because of Schaub’s total failure to comply with his contract with respect to the purchase thereof, and because of his failure to grant to the plaintiff leases for the operation of his trucks, as agreed to as a part of his contract with the plaintiff, and if the defendant Schaub is permitted to carry out his lease and sells under the option given by him to the Apex Transportation, Inc., to purchase said operating rights the plaintiff will be permanently deprived of his property rights in the aforesaid operating authority and thereby greatly damaged, as well also by being deprived of the said lease privileges contracted to be furnished him by such defendant; that the American Trust Company may be authorized to pay the funds now in its custody to the defendant Schaub and Apex Transportation, Inc., may exercise their option to purchase the operating rights and pay over the purchase price to defendant Schaub unless restrained from doing so by the court pending the determination of the rights of the parties; that unless the defendant Schaub complies with his contract of purchase from the plaintiff Taylor of the operating rights said contract should be annulled and the operating rights referred to should be restored to the plaintiff Taylor, and the defendant Schaub should have no rights by virtue of said contract; and the rental funds now being held by American Trust Company should, be paid over to the plaintiff Taylor and not to defendant Schaub, as the plaintiff is the owner of and entitled to the restoration of the aforesaid operating rights, because of the breach of the contract by the defendant Schaub, and if said rights should not be restored by the court to him, the plaintiff is entitled to recover of the defendant Schaub, because of his breach of contract, the sum of $40,000.00; “12. That the conduct of the said C. S. Schaub hereinbefore related in taking over these rights, without paying the purchase price at the time of the approval of the transfer by the Interstate Commerce Commission, as per agreement, and by his failure to notify this plaintiff of the proposed lease and option agreement with Apex Transportation, Inc., and by the execution of said lease and option agreement, without reserving and providing for lease privileges for this plaintiff for the operation of his trucks and by otherwise failing in all respects to comply with his contract with this plaintiff, constitutes a wanton and malicious attempt to defraud tbis plaintiff and deprive bim of valuable property rights without consideration.

“13. That if the said C. S. Schaub is permitted to transfer to Apex Transportation, Inc., the operating rights referred to, and if said Apex Transportation, Inc., is permitted to pay over to him the purchase price and the rentals which have accumulated, it will cause this plaintiff irreparable damages.

“Wherefore, the plaintiff prays the Court :

“1. That this complaint be taken as an affidavit for the purpose of the restraining order prayed for.

“2. For an order restraining American Trust Company and/or Apex Transportation, Inc., from paying over to the defendant, C. S. Schaub, any of the funds which have been accumulated as rentals for the operating rights hereinbefore referred to, and from paying to said defendant any sum or sums whatsoever as a consideration in exercising the rights of Apex Transportation, Inc., to purchase said operating rights under the option agreement hereinbefore referred to; and restraining said American Trust Company from honoring any check or checks against said account by C. S. Schaub and Apex Transportation, Inc., until the rights of the parties herein are determined, and also from honoring any check that may be given to C. S. Schaub by Apex Transportation, Inc., representing the purchase price or a part of the purchase price for said operating rights by virtue of the option agreement referred to herein.

“3. For an order restraining 0. S. Schaub from collecting any of the rents now being held in escrow by American Trust Company, and from collecting any sum from Apex Transportation, Inc., on the purchase price of the operating rights hereinbefore referred to and from depositing or cashing or otherwise using any check or cheeks that may have been given or may be given by Apex Transportation, Inc., representing any of the rents above referred to or representing any part of the purchase price on the operating rights which were leased to Apex Transportation, Inc., by the said C. S. Schaub, with option to buy.

“4. For a judgment restoring said operating rights to this plaintiff and requiring Apex Transportation, Inc., and American Trust Company to pay over and deliver to this plaintiff all rents that have accumulated and that may hereafter accumulate, and if the Court shall be of the opinion that the plaintiff is not entitled to have said operating rights restored, then and in such event, for a judgment against 0. S. Schaub for $40,000.00 actual damages and $10,000 punitive damages, and for such other and further relief as to the Court may seem just and proper.”

The cause came on to be heard by the judge holding the courts of the Sixth Judicial District, on application for a restraining order by the plaintiff, using the complaint as an affidavit for this purpose, and the said judge considered, ordered, adjudged and decreed that the Apex Transportation, Inc., and the American Trust Company, be restrained from paying to the defendant Schaub any funds accumulated for rentals for the operating rights referred to in the complaint, under lease to Apex Transportation, Inc., by C. S. Schaub, and from paying to defendant Schaub any sum whatsoever as purchase price of said operating rights which resulted from the exercising of the option to purchase which said Schaub gave to said Apex Transportation, Inc., and restraining American Trust Company from honoring any checks against the account of said Schaub and Apex Transportation, Inc., for any of the funds referred to in the complaint, and also restraining said trust company from honoring any check given by Apex Transportation, Inc., to C. S. Schaub representing the purchase price of said operating rights by virtue of the agreement between the transportation and Schaub; and restraining the defendant 0. S. Schaub from collecting the funds held by the American Trust Company and arising from rentals of said operating rights, and from collecting any sum from the Apex Transportation, Inc., on the purchase price of said operating rights; and directing the defendants named to show cause why said restraining order should not be continued till the final hearing.

In response to the notice to show cause why the restraining order should not be continued to the final hearing, the defendant Schaub filed answer “That there is another action pending in the Superior Court of Wake County, N. 0., between the same parties for the same cause of action, as will fully appear from certified copies of the summons and pleadings in the suit of C. S. Schaub, trading and doing business as Apex Motor Lines, v. L. E. Taylor, trading and doing business as L. E. Taylor & Son, attached hereto as Exhibit ‘A,’ and made a part of this answer”; that the plaintiff seeks no relief in this action which cannot be obtained in said action pending in Wake County; that the plaintiff is estopped from maintaining this action by admission in his answer and allegation in his further answer and defense in said action pending in Wake County; that the plaintiff Taylor is bound by his undertaking in an application to Interstate Commerce Commission to have a suit remain in stains quo, said undertaking being to the effect that he, Taylor, stands ready and willing to have an accounting with 0. S. Schaub as prayed for by Schaub in his complaint in the action pending in Wake County; that application of the plaintiff to the Interstate Commerce Commission was denied and the plaintiff is now able and bound by his undertaking to have an accounting between him and defendant Schaub taken in the action pending in Wake County in which action not only all the plaintiff’s rights referred to in the answer in that action, but also all such rights referred to in the complaint in this action, may be adjudicated; and plaintiff may not now avoid tbe effect of bis • undertaking in tbe action pending in Wake County by tbe prosecution of tbis subsequent action in Duplin County.

Tbe complaint and answer in tbe action in Wake County wbicb tbe defendant Scbaub set up as a bar to tbis action are to tbe effect that tbe plaintiff therein, C. S. Scbaub, as purchaser, and tbe defendant therein, L. E. Taylor, as seller, entered into a sales agreement for tbe purchase and sale of certain operating rights, and made application to tbe Interstate Commerce Commission, under tbe Motor Carrier Act, 1935, for tbe substitution of tbe plaintiff as purchaser in lieu of tbe defendant as applicant, and for tbe transfer of tbe application for a certificate of public convenience and necessity from tbe defendant to tbe plaintiff, that tbe application was approved by tbe Commission and thereupon, under tbe contract between them, tbe transfer became consummated and tbe plaintiff became indebted to tbe defendant for tbe purchase price thereof, to wit: $3,500.00, less $50.00 payment theretofore made thereon; that thereupon tbe plaintiff undertook to make a settlement with tbe defendant and to lease tbe trucks belonging to tbe defendant for tbe operation thereof by tbe defendant as operating agents, as provided in tbe contract of purchase between tbe said Taylor and Scbaub; that tbe defendant neglected and failed to co-operate with tbe plaintiff in carrying out said contract, and continued to operate bis trucks in violation of said contract; that tbis misconduct on tbe part of tbe defendant was a breach of said contract and prejudicial to tbe certificate then pending before tbe Interstate Commerce Commission; that for more than seven months after plaintiff bad endeavored to carry out tbe contract with defendant, tbe defendant continued to operate bis trucks in bis own name in violation of said contract; and tbe defendant continued to operate bis said trucks in violation of bis contract and in violation of tbe rules of interstate commerce notwithstanding tbe efforts and willingness of tbe plaintiff to comply with said contract, and “consequently no settlement has ever been bad between tbe plaintiff and tbe defendant”; that by reason of certain payments made by tbe plaintiff for tbe benefit of tbe defendant “tbe entire purchase price of said operating rights has 'become extinguished, and tbe defendant has become indebted to tbe plaintiff over, and above said contract purchase price in tbe sum of at least $525.15”; that due to tbe defendant Taylor’s continued failure to comply with said contract with tbe plaintiff Scbaub, and failure to conform to tbe rules of tbe Interstate Commerce Commission, and with tbe law, it was in March, 1943, mutually agreed by tbe plaintiff and defendant that tbe lessee operation by tbe defendant should be discontinued; and that since no settlement has ever been made between plaintiff and defendant, tbe plaintiff is entitled to an accounting in order “to determine tbe amount of money due tbe plaintiff by tbe defendant”; that the plaintiff on 13 April, 1943, by and with approval of tbe Interstate Commerce Commission, leased and transferred tbe operating rights to tbe Apex Transportation, Ine., and since said transfer said corporation has been sole operator thereof and in sole control thereof; “Wherefore, plaintiff prays that be have an accounting by and between him and tbe defendant in order to ascertain tbe amount due plaintiff by tbe defendant, ■ and in order that there may be a full and complete settlement by and between tbe plaintiff and tbe defendant in all matters growing out of said purchase and sale agreement, and of tbe said lessee operation as herein set forth; and that plaintiff have and recover judgment against tbe defendant for tbe sum of at least $525.15, that tbe plaintiff have and recover of tbe defendant all costs hereof and such other and further relief as tbe Court may consider just and proper.”

Tbe defendant Taylor in answer to tbe complaint of plaintiff Schaub admitted that be and Schaub made application to Interstate Commerce Commission for substitution of plaintiff Schaub for defendant Taylor in certificate of public convenience and necessity, but avers that tbe plaintiff has violated tbe contract of transfer between defendant and plaintiff by not paying tbe purchase price agreed upon and for that reason tbe plaintiff is not tbe owner of or entitled to tbe possession of tbe said operating authority; tbe allegation that defendant Taylor refused to make a settlement with plaintiff Schaub is denied, and it is averred that tbe defendant Taylor stood ready at all times to comply with tbe terms and conditions of tbe contract just as soon as tbe plaintiff made settlement thereunder as be was due to do; that if tbe plaintiff Schaub bad paid tbe defendant Taylor tbe amount due, there would have been no delay by this defendant in doing tbe things contracted for, and any delay or failure on tbe part of tbe defendant to carry out tbe terms of said contract was due to tbe failure on tbe part of tbe plaintiff to pay to tbe defendant tbe money due him under said contract; that it is denied that tbe defendant owed tbe plaintiff anything for payments made by tbe plaintiff on behalf of tbe defendant, it is admitted, however, that tbe plaintiff paid tbe defendant $350.00 on tbe purchase price of $3,500.00 named in tbe contract for tbe operating rights; it is specifically denied not only that any settlement has been made between tbe parties to tbe contract, but also that any request has been made therefor by tbe plaintiff; that on 13 April, 1943, tbe plaintiff attempted to lease and transfer said operating rights to Apex Transportation, Inc., in complete disregard of tbe rights of tbe defendant under tbe contract between plaintiff Schaub and tbe defendant; and as a further defense tbe defendant Taylor, on 27 August, 1941, entered into a contract with plaintiff Schaub for tbe sale of said operating rights and entered into an application to the Interstate Commerce Commission for approval of a transfer of the operating authority from defendant Taylor to the plaintiff Schaub, which application was approved 13 September, 1941, at which time the plaintiff Schaub, under his contract with defendant Taylor, became indebted to the defendant Taylor for the balance of the purchase price for said operating authority, namely, $3,450.00; as well as otherwise obligated to make certain leases to the defendant Taylor for the operation of his trucks, in Interstate Commerce, as lessee; that the plaintiff Schaub has never paid the defendant Taylor the amount contracted for and has attempted to transfer the said operating authority to the Apex Transportation, Inc., without preserving for the defendant the permanent leases and operating rights and other services which he had agreed to do in his said contract with the defendant; that the defendant did not know of the attempted transfer by the plaintiff Schaub to the Apex Transportation, Inc., until several weeks thereafter, which constituted a fraud upon the defendant, and the defendant, since the discovery of said fraud, filed petition with the Interstate Commerce Commission for reconsideration of the approval for the substitution or transfer of the certificate, asking that said transfer he declared null and void and that the order approving the application for substitution of plaintiff, as owner, be reopened; that the defendant Taylor “is ready and willing to have an accounting with the plaintiff as soon as the application filed with the Interstate Commerce Commission has been passed on and no intelligent nor proper accounting between the plaintiff and defendant can be had until after it is determined by the Interstate Commerce Commission whether or not the transfer to the plaintiff of the operating rights referred to in the complaint shall be declared null and void”; and it is specifically “alleged that a proper accounting cannot be had until after said application has been disposed of”; “Wherefore, this defendant prays that this case remain in stains quo until after the Interstate Commerce Commission has passed on the rights of the plaintiff and this defendant with respect to the operating authority referred to in the complaint, and if and when that has been done, this defendant stands ready and willing to have a proper accounting to determine the rights of the parties herein with respect to the things referred to in the complaint and in this answer.”

The plaintiff Schaub in a reply filed to the answer filed by the defendant Taylor, admits that on 27 August, 1941, plaintiff and defendant entered into the contract as alleged, and that operating authority referred to therein was on 13 September, 1941, assigned and transferred to plaintiff Schaub from defendant Taylor, whereupon said plaintiff became indebted to said defendant in the sum of $3,450.00, the balance due on purchase price, which amount plaintiff alleges was duly paid by the payment of $350.00 in cash, “and by way of rentals accruing and becoming due plaintiff by defendant on trucks leased by. plaintiff from defendant” and in fact plaintiff has overpaid defendant to the extent of $525.15; admits that on 13 April, 1943, plaintiff assigned and transferred said operating authority to the Apex Transportation, Inc., under operating lease agreement approved by Interstate Commerce Commission, as he, as owner thereof, had a right to do; denies that any fraud was perpetrated upon the defendant Taylor or that he was thereby wrongfully deprived of any right, since he had previously sold and assigned any and all rights which he had therein to the plaintiff; that the defendant Taylor had no enforceable rights under said contract, except to collect the purchase price of said operating authority, and that any agreement in said contract relative to the leasing of trucks was incapable of definite interpretation and was terminable at will; denies that “a proper accounting cannot be had between plaintiff and defendant, or that an adjudication herein of their contract rights cannot be had until after said matter is considered by the Interstate Commerce Commission for that said Interstate Commerce Commission has no jurisdiction to. adjudicate the contract rights arising between the plaintiff and the defendant, or of the rights to an accounting between them under said contract; but on the contrary this Court has complete jurisdiction thereof,” whereupon the plaintiff renews the prayers contained in the complaint.

On 19 December, 1944, at Sanford, his Honor, Williams, judge holding the courts of the 6th Judicial District, after hearing the contentions of the parties, denied the plea in abatement filed by defendant Schaub and overruled the defendant’s motion to dismiss the action, and continued the restraining order till the final hearing. Pending the final hearing, however, the Apex Transportation, Inc., is authorized to pay to the American Trust Company, as stakeholder, such payments and rents as are or may become due, subject to the final determination of the rights of the parties to this action, to be paid out on the further orders of this Court; all conditioned upon the plaintiff Schaub increasing the undertaking heretofore given by him.

To the refusal of the court to grant his motion that the action abate and that the restraining order be dissolved, and to the refusal of the court to grant his motion that the action abate as to him, defendant Schaub, and the restraining order as to him, defendant Schaub, be dissolved, the defendant Schaub preserved exception, and appealed to the Supreme Court.

The Apex Transportation, Inc., filed answer to the effect that it, said transportation, on or about 13 April, 1943, purchased the operating rights referred to in the complaint from the defendant Schaub, who was clothed with all indicia of ownership, and without any knowledge of the claim of the plaintiff Taylor to such ownership, and that it was an innocent purchaser for value of said operating authority; and that the plaintiff Taylor, having clothed the defendant Schaub with all indicia of ownership of such operating authority, is now estopped to deny the title of the Apex Transportation, Inc., and pleads such estoppel in bar of the plaintiff Taylor’s right to recover said operating authority; and prays that it be adjudged the owner of said operating rights subject to the payments of the balance of the purchase price, and that it be directed as to whom such balances should be made. No appeal was taken by the Apex Transportation, Inc.

R. D. Johnson and Langston, Allen & Taylor for plaintiff Taylor, appellee.

R. Roy Garter and Murray Allen for defendant 0. S. Schaub, appellant.

Schenck, J.

The denial of his Honor of the defendant Schaub’s motion to abate the plaintiff Taylor’s action and to dissolve the restraining order theretofore issued and the making by the defendant Schaub, the appellant, of such ruling on the part of the court the bases of excep-tive assignments of error raise the determinative question posed on this appeal, namely: "Was there another action pending in the Superior Court of "Wake County between the same parties and involving the same causes of action as are involved in the instant case pending in the Superior Court of Duplin County? If the answer is in the negative his Honor’s ruling was correct; if, on the other hand, the answer is in the affirmative his Honor’s ruling was in error.

In the instant case, pending in the Superior Court of Duplin County, the plaintiff Taylor seeks to have the defendant American Trust Company and/or Apex Transportation, Inc., restrained from turning over to defendant Schaub any funds in payment of the operating rights which Schaub is alleged to have contracted to lease, with option to purchase, to Apex Transportation, Inc., and to restrain Schaub from collecting any of the funds held in escrow by the American Trust Company or any funds from the Apex Transportation, Inc., on the purchase price of said operating rights; and seeks further to have judgment restoring to the plaintiff Taylor said operating rights and to recover all rents that accumulate on said operating rights, or in the event the plaintiff cannot recover said operating rights that plaintiff recover $40,000.00 damages of the defendant Schaub.

The instant ease pending in Duplin County is to restrain some of the defendants from paying ovér certain funds arising from rental and sale of the operating rights, and to restrain the defendant Schaub from collecting any such funds; the object of such restraining older being to prevent the consummation of the contract of purchase and sale of the operating rights alleged to have been wrongfully entered into by defendant Schaub with the defendant Apex Transportation, Inc., in derogation of the rights of the plaintiff Taylor. In other 'words, the principal purpose of the instant case in Duplin County is to restrain any action which would render the plaintiff Taylor’s suit to recover back the operating rights ineffective. Whereas in the former case pending in Wake County, the defendant therein, being the same person as the plaintiff in the instant case, the principal purpose of the defendant Taylor, as evidence by his admissions in his answer and averments in his further defense, was to obtain an accounting between him, Taylor, and the plaintiff Schaub of the matters and things growing out of the contract between them of purchase and sale of the operating rights.

The relief sought by Taylor in the former case being for an accounting between defendant Taylor and plaintiff Schaub and in the instant case being for a restraining order against defendant Schaub and others in favor of plaintiff Taylor, any judgment rendered in the former case would not afford the relief sought in the latter case; nor would a judgment in the former case be res judicata in the latter case.

It would therefore seem that a negative answer to the question posed is indicated and that his Honor was correct in disallowing the motion of the defendant Schaub to abate the latter action. “In accordance with the rule that the relief sought in both actions must be the same in all material respects, a test frequently applied in determining the identity of the causes of action, and which is applicable in equity, as well as law, is, whether the relief sought in the second action, to which abatement is pleaded, is fully covered by, and obtainable under, the relief asked in the prior action, which is pleaded in abatement, that is, is a judgment based on the cause of action alleged in the second action legally possible in the first action, which was brought for the purpose of obtaining such judgment. Under this test a second action should be abated, if the party who institutes it is able to obtain in the prior pending action all the relief which he asks in the second, or to which he is entitled; or, as otherwise expressed, a second action should be abated where every material right or question asserted therein could be adjudicated in the prior pending action, or where the whole purpose of the second action is attainable in the first, or where the prior action is effectual and the party can obtain his remedy therein as completely as in the second action.” 1 C. J. S., Abatement and Revival, par. 43; 1 Am. Jur., Abatement and Revival, pars. 28 et seq.

“Where a judgment in a pending action would not support a plea of res judicata in a second action, and the two actions are not the same and the results sought are dissimilar, a plea in abatement in the second action on the ground that another action between the parties was then pending is properly overruled.” Syllabus of Comr. of Banks v. Gavin, 202 N. C., 843, 163 S. E., 682.

“The plea in abatement was properly overruled. Hawkins v. Hughes, 87 N. C., 115. The causes of action are different in the two suits. A final judgment in the action brought in Yance County would not support a plea of res judicata in the subsequent proceeding instituted in Warren County. This is one of the tests of identity. Bank v. Broadhurst, 197 N. C., 365, 148 S. E., 452. In short, the two suits are unlike: the causes of action are not the same; and the results sought are dissimilar. 1 C. J., 56. This renders the plea in abatement bad.” Brown v. Polk, 201 N. C., 375, 160 S. E., 357.

The plaintiff in the instant case, Taylor, is not estopped to maintain the action in Duplin County, for the reason that no counterclaim was pleaded in the former action in Wake County by the defendant Schaub, and this action in Duplin County is against the defendant Schaub for transferring the operating rights of the plaintiff Taylor, without his knowledge and consent, and in fraud of his rights to operate his trucks, as he had theretofore done, and for return of said rights, or in the event he could not recover said rights, for damages for the loss thereof; and against the Apex Transportation, Inc.,- to whom such rights had been transferred for any amount due for the purchase of said rights and any rentals accruing thereon; and against the American Trust Company to follow the funds so accruing; the last two defendants were not made parties to the first action, which was brought for an accounting, and no judgment in that action would be binding upon them.

The present status is the action in Wake County of Schaub v. Taylor for an accounting, and the action in Duplin County of Taylor against Schaub and two other defendants, to which the defendant Schaub has filed plea in abatement and motion to dismiss, and his codefendant, Apex Transportation, Inc., has filed answer to the merits. Under these circumstances his Honor committed no error in denying the plea in abatement and overruling the motion to dismiss for the reason that another case was pending between the same parties for the same cause of action and his order should be affirmed, and it is so ordered.

Affirmed.