McPhail v. Johnson

• Decision Date: 12 November 1891
• Citation: 13 S.E. 799,109 N.C. 571
• Parties: McPhail et al. v. Johnson.
• Court: North Carolina Supreme Court

13 S.E. 799

109 N.C. 571

McPhail et al. v. Johnson.

Supreme Court of North Carolina

November 12, 1891

Appeal from superior court, Cumberland county; R. F. Armfield Judge.

Action by McPhail Bros. against James H. Johnson on a contract for lumber furnished. Judgment for defendant on nonsuit. Plaintiffs appeal. Affirmed.

Statement by the Court. This was one of three civil actions commenced and tried at the same time in the court of a justice of the peace of Cumberland county, in all of which plaintiffs recovered judgment, and the defendant appealed to the superior court; and this action came on for trial by a jury before Judge Armfield, at May term, 1891, of Cumberland superior court. The said actions were founded upon a written contract between the defendant and the firm of H. Wade & Co. the latter firm having assigned their interest in said contract to plaintiffs. Plaintiffs alleged that the whole of said contract had been performed before the bringing of the said three actions in the justice's court, and that there was then due to plaintiff on said contract, or for work done thereunder, a sum largely in excess of $200; but as the contract had been performed by several deliveries of lumber at different times, which several deliveries were respectively, under $200, that they had a right to split up their account, and bring their several actions for sums respectively, less than $200, though aggregating more than $200, in the court of a justice of the peace. The following is a copy of the part of the contract material here: "(4) The said James H. Johnson is to receive the entire output of said mill, and pay the said H. Wade & Co. the sum of two dollars and fifty cents per thousand feet for any and all lumber so sawed as it is taken from the saw and sawed according to bills furnished, in a workmanlike manner." "His honor intimated that, as the whole amount claimed by plaintiffs was due when these three actions were commenced, the plaintiffs could not split up their cause of action as they had attempted to do, so as to give jurisdiction to the justice. In deference to this opinion of his honor, plaintiffs took a nonsuit, and appealed to the supreme court."

Where plaintiffs' contract provided for furnishing defendant with certain lumber, and on a performance of their contract the amount due them exceeded the jurisdiction of a justice of the peace, they could not split the amount so as to bring three...