Carolina Hardware Co. v. Raleigh Banking & Trust Co.

• Decision Date: 27 October 1915
• Docket Number: 253.
• Citation: 86 S.E. 706,169 N.C. 744
• Parties: CAROLINA HARDWARE CO. ET AL. v. RALEIGH BANKING & TRUST CO. ET AL.
• Court: North Carolina Supreme Court

86 S.E. 706

169 N.C. 744

CAROLINA HARDWARE CO. ET AL. v. RALEIGH BANKING & TRUST CO. ET AL.

No. 253.

Supreme Court of North Carolina

October 27, 1915

Appeal from Superior Court, Wake County; Daniels, Judge.

Action by the Carolina Hardware Company and others against the Raleigh Banking & Trust Company and others. Judgment for plaintiffs, and the named defendant appeals. Affirmed.

The above-entitled action, with similar actions by J. C. Grinnan and Dorace Terra Cotta Company, the Raleigh Iron Works Company, Powell & Powell, Inc., and Young & Hughes, against the above defendants, were pending in the superior court of Wake county and by a consent order were consolidated in one action. The cause was referred to a referee, who took the evidence and made his report, stating his conclusions of fact and law. The plaintiffs filed exceptions thereto, and upon the hearing the superior court, Daniels, Judge, presiding sustained the exceptions to the referee's conclusions of law and rendered judgment for the plaintiffs. The defendant the Raleigh Banking & Trust Company excepted and appealed.

Plaintiffs who furnished labor and materials to contractor for bank building, acting merely as agent for bank, could hold the undisclosed principal bank liable upon discovery.

Jones & Bailey and Walter L. Watson, all of Raleigh, for appellant.

John W Hinsdale, Jr., Clark & Broughton, R. C. Strong, and Manning & Kitchin, all of Raleigh, for appellees.

BROWN J.

These several actions, which have been consolidated and tried as one action, were brought to secure and enforce a lien for material furnished and used in the construction of the banking house of the defendant the Raleigh Banking & Trust Company in the city of Raleigh and to collect the sums due each of said plaintiffs therefor from said trust company. Due notice, according to the statute, was given to withhold the sums claimed from the contract price for the construction of the building. In his first report the referee finds that the trust company had overpaid the contractors over and above the amount due them on the contract price by $25,423, six months prior to the filing of plaintiffs' liens, and concludes as matter of law that the said trust company is not indebted to the plaintiffs in any sum and that they are not entitled to any lien on the bank building for the materials furnished to J. B. Carr & Co., the contractors. Upon the coming in of this report, two of the plaintiffs were allowed to amend their complaints by adding the following amendment:

"That the contract alleged in the next preceding paragraph was, in accordance with its terms, to have been completed in August, 1912, and that the trust company and its contractor, finding that a large part of the contract had not been performed by the contractor according to its terms, then entered into a new contract with the defendant contractor wherein it was agreed that the said contractor should perform his original contract with the provision that the defendant trust company would pay for the material, labor, etc., to be then purchased by the said contractor and necessary for the completion of the said building. The building was completed in August, 1913, and accepted by the defendant trust company."

The cause was re-referred, and the referee reported his findings of fact and conclusion of law holding the said trust company not liable for the plaintiffs' demands. To this conclusion of law the plaintiffs excepted. The judge sustained the exception, and upon the findings of fact, as made by the referee, adjudged that the said trust company is liable to plaintiffs and rendered judgment accordingly.

The defendant first excepts to the order of the court allowing the amendments to the complaint on the ground that the defendant had no notice of the motion to amend. It appears that the motion was made at the regular term of the court by the plaintiff, the hardware company, and Young & Hughes, and was granted without notice to the defendant. It is well settled that no notice of a motion is required to be given to the adversary party when the motion is made at a term when the cause stands for trial. Parties to actions are supposed to take notice of any motion that may be made in a cause when it is made during the terms of the court. Hemphill v. Moore, 104 N.C. 379, 10 S.E. 313; Erwin v. Lowery, 64 N.C. 321; Stith v. Jones, 119 N.C. 428, 25 S.E. 1022.

The defendant contends, in the second place, that the amendment introduced into the proceeding a new and distinct cause of action from the one stated in the original complaint. It is well settled that the court cannot, except by consent, allow an amendment which changes the pleadings so as to make substantially a new action, but it is also settled that an amendment which only adds to the original cause of action is not of this nature and may be allowed in the sound discretion of the trial judge. Ely v. Early, 94 N.C. 1; Craven v. Russell, 118 N.C. 564, 24 S.E. 361.

We do not think that the effect of the amendment in any way changed or added to the original cause of action. The gravamen of the original complaint is to the effect that the defendant, the trust company, is indebted to the plaintiff for material and supplies furnished in erecting its building. The plaintiffs first proceeded to acquire a lien upon the building for the material furnished under the statute. The plaintiffs failed in this because it turned out, as represented by the referee, that the defendant owed the contractor nothing. But upon that investigation it turned out, and was so reported by the referee, that the contractor had failed in his contract practically, and in order to complete the building the defendant agreed in August, 1912, to pay for such supplies and material as was necessary to finish it. This does not create a new cause of action. It simply gave the plaintiffs another legal ground for the collection of the same demand.

Upon this principle it was decided that where a complaint alleges that the defendant had converted wrongfully money belonging to the plaintiff, thereby setting up a tort, an amendment alleging that the defendant had received the money as trustee and thereby...