Balfour Quarry Co. v. West Const. Co.

• Decision Date: 24 November 1909
• Parties: BALFOUR QUARRY CO. et al. v. WEST CONST. CO.
• Court: North Carolina Supreme Court

66 S.E. 217

151 N.C. 345

BALFOUR QUARRY CO. et al. v. WEST CONST. CO.

Supreme Court of North Carolina

November 24, 1909

Appeal from Superior Court, Rowan County; E. B. Jones, Judge.

Action by the Balfour Quarry Company and another against the West Construction Company. A demurrer to the complaint was overruled, and defendant appeals. Affirmed.

If a quarry company and a stone company contracted jointly to furnish rock, both companies were interested in an action to recover the amount due to each company, and were properly joined as plaintiffs.

E. E Raper, for appellant.

Clement & Clement and Walser & Walser, for appellees.

WALKER J.

This action was brought by the Balfour Quarry Company and the American Stone Company against the West Construction Company to recover the sum of $2,113.84, the amount alleged to be due under a contract, between the plaintiff and the defendant, to furnish crushed granite or rock, for the purpose of enabling the West Construction Company to perform a contract with the town of Lexington, to macadamize certain streets in said town. The contract for furnishing the crushed rock was originally made by the town of Lexington with the Balfour Quarry Company, by which the quarry company contracted and agreed to furnish about 14,000 tons of the crushed rock divided into different quantities of specified sizes or quality. There were special provisions in the contract, not necessary to be stated, as they are immaterial to the decision of the case. It is sufficient to say that the quarry company furnished a part of the stone itself and "sublet," if we may use that term, a part of its contract with the construction company, by which the American Stone Company was permitted, by the construction company, to furnish the rest. There was correspondence, by letters between the quarry company and the construction company, with reference to the contract of the former company with the American Company, in which the quarry company, by letter dated June 7, 1907, requested the construction company to ratify or confirm its contract with the stone company. To this letter the construction company replied as follows: "We can only confirm that part of your letter that this order was placed with the Balfour Quarry Company, and that they have asked you to ship us, and as we wish to state that on all shipments you make us to Lexington, N. C., we will pay you at the rate named in your letter, of 90 cents per ton of 2,000 lbs. of stone at quarry, and freight at 40 cents per ton. We can use all the stone that you can ship us and would thank you to make prompt shipments, but you can readily understand that we have made a contract with the Balfour Quarry Company for all stone that we will need on this work, and could not recognize you in the matter or agree to any assignment of contract, as we could only hold the Balfour Quarry people responsible, but, as stated to you before, we will make prompt settlement with you for all stone you can ship. Please bear in mind that in making shipments of this stone to us, we wish you to make same in gondola or bottom dump coal cars, as we have secured a trestle in Lexington, on which cars will be run out and dumped, so bear in mind that under no circumstances do we want flat bottom cars. We trust that the above will be satisfactory to you."

There is no contention that the quarry company or the stone company failed to comply with their part of the contract, and there could not well be at this stage of the case, as compliance is alleged in the complaint, and the demurrer, as matter of law, admits the facts therein stated, for the purpose of passing upon the validity of the complaint, or, more concisely speaking, the question raised by the demurrer. As is so well said by our former associate, Justice Connor, in Merrimon v. Paving Company, 142 N.C. 556, 55 S.E. 371 (8 L. R. A. [N. S.] 574): "Every demurrer directed to the incapacity of the plaintiff to sue, the misjoinder of parties or causes of action or jurisdiction, admits the facts alleged for the purpose of the demurrer. Any other construction of the demurrer which did not reach the merits of a controversy would make it a vain thing."

The complaint shows that there are two causes of action set forth, one for the recovery of the amount due by the defendant to the quarry company, and the other for the recovery of the amount due by the defendant to the other plaintiff, the American Stone Company; the amount due to the quarry company being $1,405.74, and to the American Stone Company, $708.10, as shown by itemized accounts annexed as exhibits to the complaint. The defendant demurred to the complaint upon the following grounds: "There is a misjoinder of parties plaintiffs and also of causes of action, as follows: The first cause of action is in favor of the plaintiff, Balfour Quarry Company, against the defendant, in which the coplaintiff, American Stone Company, is in no wise interested, and to which the American Stone Company is an improper party. In the second cause of action, there is set out a cause of action in favor of the American Stone Company in which the coplaintiff, Balfour Quarry Company, is not interested, and therefore not a necessary or proper party." The court below overruled the demurrer, and the defendant appealed.

Our opinion is that Judge E. B. Jones, who presided at the trial, took the right view of the case and should be sustained in his ruling. The demurrer is predicated upon the contradictory notion that there was a contract between the defendant and the stone company, and that there was not. If there was a separate contract with the latter company, which by its terms or by clear legal intendment released the quarry company, and relieved it to the extent of the crushed rock to be furnished by the stone company, there might be some merit in the demurrer, because in that case there would be two distinct contracts, one by the quarry company to furnish a part of the crushed rock, and the other by the stone company to furnish the remainder; but the letter of the defendant to the stone company, dated June 11, 1907, sufficiently disposes of any such contention. By that letter it expressly refused to discharge the quarry company from liability, or to substitute the stone company in its place; but if that letter is construed as making a joint contract between the quarry company and the stone company, on the one side, and the defendant, on the other, the demurrer must necessarily fail, as both plaintiffs, in that case, would be interested in both causes of action, and, consequently, there would be no misjoinder of parties or causes of action. If the quarry company was responsible solely to the defendant for furnishing the rock, then there is no harmful misjoinder, as the joining of the stone company as a "superfluous" plaintiff would be immaterial and could in no way prejudice the defendant in the trial of the case.

It would seem vain and idle to attempt the demonstration of these propositions by argument or the citation of authorities; but we will refer to a few of the precedents in this court. Green v. Green, 69 N.C. 294; Warrenton v Arrington, 101 N.C. 109, 7 S.E. 652; Perkins v. Berry, 103 N.C. 131, 9 S.E. 621; Abbott v. Hancock, 123 N.C. 99, 31 S.E. 268. In Green v. Green, the correct principle is substantially stated by Chief Justice Pearson as follows: "A defect of parties is ground of demurrer, but too many parties is mere 'surplusage,' and is easily cured by a judgment for costs or a disclaimer. A nonjoinder of one who is a necessary party is fatal, for he will not be bound by the judgment. This affects the merits; but a misjoinder of one who is not a necessary party, and whose interests therefore cannot be prejudiced by the judgment, is clearly harmless." It was in this case that the great Chief Justice expressed his earnest desire to decide every case according to the very right of it, without any reference to the nature of it or to those who may be concerned in its results. What he said is worthy of repetition here: "This court is willing at all times, before the opinion is filed, to avail itself of the...