Burton v. Dixon, 389

• Decision Date: 22 May 1963
• Docket Number: No. 389,389
• Parties: Myrtle BURTON v. A. L. DIXON, Executor of the Will of C. P. Wilson, Original Defendant, and K. D. Burton, Additional Defendant.
• Court: North Carolina Supreme Court

Page 27

131 S.E.2d 27

259 N.C. 473

Myrtle BURTON v. A. L. DIXON, Executor of the Will of C. P. Wilson, Original Defendant, and K. D. Burton, Additional Defendant.

No. 389

Supreme Court of North Carolina.

May 22, 1963

Everett, Everett & Everett, Durham, and T. Jule Warren, Roxboro, for plaintiff.

R. B. Dawes, Sr., and R. B. Dawes, Jr., Roxboro, for original defendant.

MOORE, Justice.

There are two questions for decision: (1) Does the counterclaim state a cause of action? (2) If so, is there a misjoinder of parties and causes?

Accepting the factual allegations of the counterclaim as true and construing them liberally, as we must in passing upon the demurrer (General Tire Rubber Co. v. Distributors, Inc., 251 N.C. 406, 410, 111 S.E.2d 614), we are of the opinion that the facts alleged are sufficient to constitute a cause of action for damages arising from a conspiracy to take possession of C. P. Wilson's property and convert it to the use of plaintiff and her husband.

A conspiracy is generally defined as an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful manner. Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783. A civil action for conspiracy is an action for damages resulting from acts committed by one or more of the conspirators pursuant to the formed conspiracy, rather than the conspiracy itself. The combination or conspiracy may be of little consequence except as bearing upon rules of evidence or the persons liable. If a conspiracy is formed and an overt act, causing damage, is committed by any one or more of the conspirators in furtherance of the conspiracy, all of the conspirators are liable. All may be joined as parties defendant in an action for damages caused by the wrongful act, but it is not necessary that all be joined; an action may be maintained against only one. The liability of the conspirators is joint and several. Burns v. Gulf Oil Corporation, 246 N.C. 266, 98 S.E.2d 339; Muse v. Morrison, supra.

The counterclaim does not refer to plaintiff and her husband as conspirators; it designates them as 'co-partners' and 'joint venturers.' However, it is not the titular designation that controls; the nature of the cause of action is determined by the facts alleged. It is alleged that plaintiff and her husband, acting together, invited C. P. Wilson to live with them for the purpose of gaining control of his assets and converting them to their own use, they persuaded C. P. Wilson to execute to the husband a general power of attorney and by means thereof sold timber and collected rents belonging to C. P. Wilson, and they converted the proceeds of the timber and rents to their own use. This is a sufficient statement of a cause of action for conspiracy, and according to the facts pleaded both conspirators committed acts pursuant to the conspiracy.

'Generally speaking, any person who is capable in law of being sued and who takes part in a conspiracy may be held civilly liable as a conspirator. * * (A)t common law an action for conspiracy cannot be maintained against a husband and wife alone, since they are considered to be one person. * * * Since the gist of the modern action, however is damage, and not the conspiracy, an action for conspiracy may now be maintained against a husband and wife alone.' 11 Am.Jur., Conspiracy, § 47, pp. 579-580; Jones v. Monson, 137 Wis. 478, 119 N.W. 179 (1909). It is the law in Virginia that a married woman may 'sue and be sued in the same manner and with the same consequences as if she were unmarried.' Code Va., § 55-36; Furey v. Furey, 193 Va. 727, 71 S.E.2d 191 (1952). The same is true in North Carolina. G.S. § 52-10; G.S. § 52-15.

This brings us to the question whether the defendant executor may assert his action for conspiracy as a counterclaim in plaintiff's action. It may be maintained as a counterclaim if it is a cause of action in favor of defendant and against plaintiff and in such action a several judgment may be had between them, and if the cause of action (counterclaim) arose out of the contract or transaction set forth in the complaint as the foundation for plaintiff's claim or is connected with the subject of the action. G.S. § 1-137.

'A several judgment may be had on a counterclaim within the purview of the statute when judgment may be rendered for the plaintiff, or all of the plaintiffs, if more than one, or for the defendants, if more than one, accordingly as the court may decide in favor of the one side or the other.' Garrett v. Rose, 236 N.C. 299, 305, 72 S.E.2d 843, 847; John L. Roper Lumber Co. v. Wallace, 93 N.C. 22. It is apparent that the counterclaim in the instant action meets this test. On the record the husband, K. D. Burton, is not presently a party. But, as stated above, conspirators are jointly and severally liable. The test is met either with or without the husband as a party.

As to whether the cause of action stated in the counterclaim arose out of the transaction set forth in the complaint or is connected with the subject of the action, the following discussion in Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614, sets out the guiding principles:

'As the purpose of the two sections, G.S. §§ 1-123, subd. 1, 1-137, subd. 1, is to authorize the litigation of all questions arising out of any one transaction, or series of transactions concerning the same subject matter, in one and the same action, and not to permit multifariousness, it must appear that there is but one subject of controversy. (Citing authorities)

'While the statute is designed 'to enable parties litigant to settle wellnigh any and every phase of a given controversy in one and the same action', Smith v. French, supra, [141 N.C. 1, 53 S.E. 437] Singer Sewing Machine Co. v. Burger, 181 N.C. 241, 107 S.E. 14, that a connected story may be told is not alone sufficient. Pressley v. Great Atlantic & Pacific Tea Co., supra [226 N.C. 518, 39 S.E. 2d 382]. Nor is mere historical sequence--'one thing led to another' order of occurrences--all that is required. Manufacturers & Jobbers Finance Corp. v. Lane, 221 N.C. 189, 19 S.E.2d 849 * * *.

'The cross action must have such relation to the plaintiffs' claim that the adjustment of both is necessary to a full and final determination of the controversy. Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555. This means that it must be so interwoven in plaintiffs' cause of action that a full and complete story as to the one cannot be told without relating the essential facts as to the other.

''The 'subject of the action' means, in this connection, the thing in respect to which the plaintiff's right of action is asserted, * * *.' To be connected with the subject of action the 'connection of the case asserted in the counterclaim and the subject of the action must be immediate and direct, and presumably contemplated by the parties.' Phillips, Code Pleading, 2d Ed., sec. 377, p. 423.

''In respect to the phrase 'connected with' the subject of...