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113 S.E.2d 717 (1960)

252 N.C. 320

W. I. SKINNER v. EMPRESA TRANSFORMADORA DE PRODUCTOS AGROPECUARIOS, S. A., Defendant, and W. I. Skinner and Company, Inc., Garnishee.

No. 20.

Supreme Court of North Carolina.

April 6, 1960.

*718 John H. Hall, Gerald F. White, Elizabeth City, for defendant, appellant.

Battle, Winslow, Merrell, Scott & Wiley, by Francis E. Winslow, Robert M. Wiley, Rocky Mount, for plaintiff, appellee.

HIGGINS, Justice.

At the threshold of this case we are confronted with the question of law whether, in his complaint, the plaintiff, W. I. Skinner, has alleged a cause of action against Transformadora. It is fundamental that the real party in interest must *719 prosecute the action. G.S. ยง 1-57; State ex rel. East Lenoir Sanitary District v. City of Lenoir, 249 N.C. 96, 105 S.E.2d 411; Amazon Cotton Mills Co. v. Duplan Corp., 246 N.C. 88, 97 S.E.2d 449; Watson v. Lee County, 224 N.C. 508, 31 S.E.2d 535; Snipes v. Monds, 190 N.C. 190, 129 S.E. 413; Elam v. Barnes, 110 N.C. 73, 14 S.E. 621. W. I. Skinner alleges the negotiations leading to the contract were carried on by the corporation; that the contract, though made in his name, was for the benefit of the corporation. In order to avoid any misunderstanding, he assigned his interest in the contract to the corporation.

After repeated allegations that W. I. Skinner and Company is the real party in interest, and never conceding otherwise, the plaintiff amended paragraph seven of his complaint to read: "It was well understood throughout the negotiations, and the understanding was followed through in operations under the contract * * * that the Cuban Government was to have the benefit of the personnel and facilities and the good name and credit in the trade of the Skinner Company, and that W. I. Skinner signed the contract as an individual to fix responsibility on him personally, but also as agent for the Skinner Company * * * On April 22, 1958 the plaintiff wrote a letter to this effect to the Skinner Company, a copy of which is hereto attached and marked Exhibit B. The Skinner Company is a real party in interest in the contract, but this the defendant denies. Therefore, plaintiff brings this action in his own name for the use and benefit of the Skinner Company."

In paragraph 13 of the complaint the plaintiff alleges the breach of the contract by the defendant "was willful, wanton and malicious, and that it is entitled to punitive damages in the sum of $10,000."

"14. That plaintiff and the Skinner Company have been damaged by defendant's breach of contract in compensatory damages in the sum of $53,400 as detailed in Exhibit C, attached and made a part hereof."

Exhibit B, which is a part of the complaint, contains the statement: "Even though the contract is in my name it actually belongs to the Skinner Company * * * I hereby assign to W. I. Skinner and Company, Inc., any income resulting from the contract."

The plaintiff's allegations, therefore, if true, state a cause of action in favor of W. I. Skinner and Company. They fail to show a cause of action in the plaintiff. Likewise they fail to show any right in him to maintain this action either for himself, for the W. I. Skinner and Company, or for both. He alleges neither that he is a trustee for W. I. Skinner and Company nor facts from which a trusteeship may be inferred as a matter of law. R. G. Chapman & Co. v. McLawhorn, 150 N.C. 166, 63 S.E. 721. He does not allege he and the corporation own the cause of action in partnership. Even if this were true, he could not maintain the action. One party may not proceed in his own name upon a partnership claim. Godwin v. Vinson, 251 N.C. 326, 111 S.E.2d 180.

Finally, if the plaintiff offered plenary evidence of all he alleges, the effect would be to prove himself out of court. His cause of action is defective according to his own allegations. "When * * * the complaint fails to state a cause of action, that is a defect upon the face of the record proper, of which the Supreme Court on appeal will take notice, and when such defects appear the Court will ex mero motu dismiss the action." Town of Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E.2d 774, 776; Woody v. Pickelsimer, 248 N.C. 599, 104 S.E.2d 273; In re Davis Custody, 248 N.C. 423, 103 S.E.2d 503; Caldlaw, Inc. v. Caldwell, 248 N.C. 235, 102 S.E.2d 829; Maola Ice Cream Co. v. Maola Milk & Ice Cream Co., 238 N.C. 317, 77 S.E.2d 910; Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911; Dare County v. Mater, *720 235 N.C. 179, 69 S.E.2d 244; Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E.2d 644; Henderson County v. Smyth, 216 N.C. 421, 5 S.E.2d 136.

The foregoing authorities and the reasons heretofore assigned require that the action be dismissed for failure of the complaint to state a cause of action.


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