Nodine v. GOODYEAR MORTGAGE CORPORATION

132 S.E.2d 631 (1963)

260 N.C. 302

Boney P. NODINE and All Persons Obligors to Goodyear Mortgage Corporation on Gl Loans, i. e., Veterans Administration Guaranteed and/or Insured Loans, v. GOODYEAR MORTGAGE CORPORATION.

No. 253.

Supreme Court of North Carolina.

October 9, 1963.

*633 W. Y. Wilkins, Jr., Tryon, for plaintiffs-appellants.

Hedrick, McKnight & Parham, Charlotte, for defendant-appellee.

PER CURIAM.

The interest of Nodine, the named plaintiff, relates solely to the note and deed of trust executed and delivered by him under date of April 2, 1952; and the interest of each of the so-called "unnamed plaintiffs" relates solely to the particular note and deed of trust executed and delivered by him. The facts alleged are insufficient to show Nodine had or has authority to file suit or otherwise act in behalf of any of the unnamed persons he undertakes to join as plaintiffs in this cause. Such unnamed persons may not be considered plaintiffs herein.

With reference to whether the facts alleged are sufficient to constitute a cause of action in favor of Nodine and against Goodyear Mortgage Corporation, the complaint discloses:

1. Particular clauses of the (Nodine) note and deed of trust are quoted. Neither instrument is set out in full. Nor is a copy of either instrument attached to the complaint.

2. There is no allegation that Goodyear Mortgage Corporation is the owner and holder of the note. Its present relationship to the note and deed of trust does not appear.

3. It is unclear whether the allegations of paragraph 10 refer to transactions between Nodine and Goodyear Mortgage Corporation or to transactions between Goodyear Mortgage Corporation and one or more of the "unnamed plaintiffs." If intended to refer to transactions between Nodine and Goodyear Mortgage Corporation, the allegations are silent as to when, under what circumstances and in what amounts Nodine's payments for taxes and insurance became and were delinquent, and as to when, under what circumstances and in what amounts Goodyear Mortgage Corporation required Nodine to pay a "late charge" in connection therewith.

In our view, the facts alleged by Nodine are insufficient to constitute a cause of action. Even so, it does not appear affirmatively that Nodine has no cause of action. Skipper v. Cheatham, 249 N.C. 706, 711, 107 S.E.2d 625. Hence, Nodine may move for leave to amend in accordance with G.S. § 1-131.

The portion of the order sustaining the demurrer is affirmed. However, the portion thereof dismissing the action is erroneous and should be stricken therefrom. It is so ordered. As so modified, the judgment is affirmed.

Modified and affirmed.