Wetherington v. Whitford Motor Co.

81 S.E.2d 267 (1954)

240 N.C. 90

WETHERINGTON et al. v. WHITFORD MOTOR CO., Inc.

No. 306.

Supreme Court of North Carolina.

April 7, 1954.

*269 W. B. R. Guion, New Bern, for plaintiffs-appellants.

Ward & Tucker, New Bern, for defendant-appellee.

BARNHILL, Chief Justice.

It clearly appears from the allegations contained in the complaint that the individual plaintiffs, in respect to the subject matter of this action, were acting in a representative capacity as agents or officers of their respective corporations. As to them, no cause of action is stated, and they pray no relief. That their names appear in the caption as plaintiffs does not affect the question posed for decision. Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792; Jordan v. Maynard, 231 N.C. 101, 56 S.E.2d 26.

What then about the Cab Company? Are two causes of actionone in behalf of the Cab Company and the other in behalf of Broad Street Motorsstated in the complaint? This is the question raised by the demurrer. The court below, by sustaining the demurrer, answered in the affirmative. A careful study of the complaint leads us to the contrary view.

If we considered the contract between the Cab Company and defendant, and that alone, it would appear that the Cab Company has clearly stated a cause of action for breach of contract. But we may not so limit our consideration. We must, instead, view the complaint as a whole, giving due weight to each and every allegation which tends to limit or qualify the contract or explain the position of the Cab Company as one of the ostensible contracting parties.

It is a matter of common knowledge that automobile manufacturers market their products through local authorized dealers, and only such dealers may procure and sell to the ultimate purchaser new automobiles as such. Of this fact the courts may take judicial notice. State v. Vick, 213 N.C. 235, 195 S.E. 779.

When we give due consideration to the contracts in connection with the allegations contained in the complaint in the light of the known fact that Broad Street Motors could not buy new Ford automobiles for resale, it is manifest that the complaint details one and only one transaction which the parties sought to camouflage as a purchase by the Cab Company and a resale to Broad Street Motors. The Cab Company was nothing more than the go-between or agent of Broad Street Motors. Its contract was made for the use and benefit of Broad Street Motors which in fact was to pay for and receive delivery of the vehicles purchased. And the Cab Company was to receive for its services in posing as the real purchaser the quid pro quo stipulated in the contract.

While it was intended that the contract with the defendant should appear to be a bona fide purchase by the Cab Company to whom defendant could make sale under the "fleet purchase plan," all parties knew and understood that Broad Street Motors was the actual purchaser and the real party in interest. As such it may maintain this action. Rector v. Lyda, 180 N.C. 577, 105 S.E. 170, 21 A.L.R. 411; Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566.

Should the Cab Company be permitted to pursue the cause to its final judgment, it would, on its own allegations, receive the amount recovered as agent for Broad Street Motors to which it would have to account and to which it would be compelled to look for its compensation for services rendered. *270 It is, therefore, an unnecessary party plaintiff. Roberson v. Swain, 235 N.C. 50, 69 S.E.2d 15; Hayes v. City of Wilmington, supra.

Considered in connection with the two contracts which are made a part of the complaint, the allegations made cannot reasonably be accorded any other meaning. So we construe the complaint.

It follows that since no cause of action is stated in behalf of the individual plaintiffs or the Cab Company, there is no misjoinder of parties or causes of action. Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295; Jordan v. Maynard, supra. For that reason the judgment entered in the court below must be

Reversed.