Annotate this Case

158 S.E.2d 18 (1967)

272 N.C. 208

QUENBY CORP. v. FRANK H. CONNER COMPANY, Original Defendant; Monroe Mechanical Contractors, Inc.; Arrow, Inc.; Winecoff Electric Co., Inc.; W. J. Sullivan; and Interstate Roofing Co., Inc., Additional Defendants.

No. 547.

Supreme Court of North Carolina.

December 13, 1967.

*20 Richardson & Dawkins by Koy E. Dawkins, Monroe, for additional defendant appellant, Monroe Mechanical Contractors, Inc.

Grier, Parker, Poe & Thompson by William E. Poe and Gaston H. Gage, Charlotte, for additional defendant appellant, Interstate Roofing Co., Inc.

Gardner, Connor & Lee by D. M. Connor, Wilson, for original defendant appellee, Frank H. Conner Co.

Brown, Brown & Brown by Charles P. Brown, Albemarle, for additional defendant appellees, Winecoff Electric Co., Inc. and W. J. Sullivan.

PLESS, Justice.

An anomalous situation is presented in this case. Five subcontractors were made new partiesfour of them demurred. The fifth filed an answer setting up a counterclaim against the original defendant, the contractor. The plaintiff moved to strike so much of the original defendant's further answer that in a practical sense it amounted to a motion to strike it in its entirety. This motion was denied, and plaintiff excepted but did not appeal. From adverse rulings upon the demurrers of the new parties, two defendants did not except. The other two, Interstate and Monroe, excepted and appealed.

It is apparent that the plaintiff and three of the subcontractors are content to have their litigation adjudicated in this action. If so, that was their right. The other two, Interstate and Monroe, by this appeal demonstrate their desire for different and separate methods. Even though it would be desirable to make a uniform ruling as to all five defendants, who occupy similar legal positions, we can rule only as to those who properly present their appeals. But with no uniformity of action by five who are uniformly affected by the ruling of the lower court, we are required to make what might appear as an incongruous decision.

The demurrers of the two appealing defendants are well taken. First because no claim has been made against them. "There must be in the first place, of course, a claim asserted by the original defendant which, tested by the substantive rules discussed in the preceding section, makes out a prima *21 facie case on the pleading for relief over in favor of the original defendant, or third-party plaintiff, against the third-party defendant." 1 McIntosh, North Carolina Practice and Procedure (1964 pp.), § 722.5, pp. 77 and 78. McIntosh further says in Footnote 19.21 at page 78:

"The allegations of such a cross-complaint are subject to the normal rules applying to the formal and substantive sufficiency of statement of any pleading asserting a cause of action for affirmative relief. Jones v. Douglas Aircraft Co., 253 N.C. 482, 117 S.E.2d 496 (1960)."

While Conner alleged in its further answer that Interstate had furnished "extras" to the extent of $6,427.53 and that Monroe had furnished them in the amount of $8,475.30, it asked no relief against them. On the contrary, it alleged that the plaintiff was indebted to it and to Interstate and Monroe in these amounts; that the plaintiff had refused to pay therefor, liens had been filed against the plaintiff's property for the alleged indebtedness and prayed judgment against the plaintiff for them. The tenor of the further answer was that Conner and the subcontractors had no controversy against each other but had a common cause against Quenby.

Even had there been a dispute between Conner and its subcontractors, it would not be germane to the plaintiff's cause of action because there is no allegation by the plaintiff of privity of contract existing between the additional party defendants and the plaintiff. In fact, the contract says: "Nothing contained in the contract documents shall create any contractual relation between any subcontractor and the owner."

This Court said in Moore v. Massengill, 227 N.C. 244, 41 S.E.2d 655, 170 A.L.R. 147, in reference to G.S. § 1-73:

"It is not intended to authorize the engrafting of an independent action upon an existing one which is in no way essential to a full and complete determination of the original cause of action. * * * `But it does not imply that any person who may have cause of action against the plaintiff alone, or cause of action against the defendant alone, unaffected by the cause of action as between the plaintiff and defendant, may or must be made a party. It does not contemplate the determination of two separate and distinct causes of action, as between the plaintiff and a third party, or the defendant and a third party, in the same action.'"

G.S. § 1-69 provides:

"All persons may be made defendants, jointly, severally, or in the alternative, who have, or claim, an interest in the controversy adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the questions involved."

Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E.2d 659, was an action in which the Gaither Corp. alleged it had contracted with Skinner to construct a building for it, and that the defendant had used faulty and defective materials in the construction of the roof and demanded damages in an amount sufficient to replace the defective roof. Skinner denied the allegations and alleged that he had subcontracted the construction of the roof to one C. R. Hopkins and that if it were defective, that Hopkins was responsible to the plaintiff and to the defendant and prayed that Hopkins be made a party to the action. The clerk granted the prayer, and Hopkins entered a special appearance and moved that he be dismissed from the action. The lower court allowed the motion, and Skinner appealed. It can be seen that the situation in that case was similar to the one under consideration here. The Court speaking through Devin, C. J., said:

"`Necessary or indispensable parties are those whose interests are such that no decree can be rendered which will not affect them, and therefore the court cannot proceed until they are brought in. *22 Proper parties are those whose interests may be affected by a decree, but the court can proceed to adjudicate the rights of others without necessarily affecting them, and whether they shall be brought in or not is within the discretion of the Court.' McIntosh, Prac. and Proc., Sec. 209, p. 184; Colbert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231. "The plaintiff has elected to pursue his action against the contractor with whom he contracted in order to recover damages for an alleged breach of that contract, and plaintiff should be permitted to do so without having contested litigation between the contractor and his subcontractor projected into the plaintiff's lawsuit. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397."

In Gulf Life Insurance Co. v. Waters, 255 N.C. 553, 122 S.E.2d 387, Parker, J., now C. J., speaking for the Court said:

"The question presented by the demurrer for decision is whether all parties are affected by all the causes of action alleged in appellants' [appellees'] further answer and defense, not whether some parties may be affected by some causes of action. It is obvious that the multiple causes of action alleged in appellants' [appellees'] further answer and defense do not affect all of the parties to the action, do not arise out of the same transaction, nor are all the transactions connected with the same subject of action."

In Johnson v. Scarborough, 242 N.C. 681, 89 S.E.2d 420, it was said:

"`There must be at least substantial identity between the causes of action before they can be united in one suit, because, if there is not, the several causes of action may, for their decision, depend upon very different facts and principles of law, which would tend to confusion and uncertainty in the trial of the case and result in great prejudice to some, if not all, of the parties.'"

For the reasons above stated and based upon the authorities cited, we are of the opinion that the demurrers of the two appealing defendants should have been sustained and the cross action dismissed as to them.