Morton v. Thornton, 595

• Decision Date: 14 June 1963
• Docket Number: No. 595,595
• Citation: 131 S.E.2d 378,259 N.C. 697
• Parties: Clarence L. MORTON, Jr., Charles A. Diggs, and Carroll D. Oglesby, as Joint Assignees, v. Eugene P. THORNTON and Elizabeth P. Thornton, Partners, Trading as Thornton Sales Service.
• Court: North Carolina Supreme Court

Page 378

131 S.E.2d 378

259 N.C. 697

Clarence L. MORTON, Jr., Charles A. Diggs, and Carroll D Oglesby, as Joint Assignees, v. Eugene P. THORNTON and Elizabeth P. Thornton, Partners Trading as Thornton Sales Service.

No. 595

Supreme Court of North Carolina.

June 14, 1963

Sapp & Sapp by Armistead W. Sapp, Greensboro, for plaintiff-appellees.

York, Boyd & Flynn by C. T. Boyd, Greensboro, for defendants-appellants.

RODMAN, Justice.

This action was begun by plaintiffs 'jointly and as assignees' to recover unpaid commissions owing to each of fifteen of defendants' salesmen. The asserted unpaid balance owing the several salesmen varies from $24.55 claimed to be due C. Fraiser Whatley to $3,077.91 claimed to be due plaintiff Morton. The aggregate of the claims is $10,107.43.

We were called upon at the Spring Term 1962 by defendants' demurrer to determine whether there was a misjoinder of parties and causes. Morton v. Thornton, 257 N.C. 259, 125 S.E.2d 464. We then held each salesman had a right of action which he could enforce for his individual claim, but he and other employees could not maintain a joint action to enforce their several claims. That holding is the law of this case. It is a mere restatement of the law as announced by this Court in its prior decisions. Roberts v. Utility Mfg. Co., 181 N.C. 204, 106 S.E. 664; Shore v. Holt, 185 N.C. 312, 117 S.E. 165; Weaver v. Kirby, 186 N.C. 387, 119 S.E. 564; Warden v. Andrews, 200 N.C. 330, 156 S.E. 508; Davis v. Whitehurst, 229 N.C. 226, 49 S.E.2d 394; Branch v. Board of Education, 233 N.C. 623, 65 S.E.2d 124; Chambers v. Dalton, 238 N.C. 142, 76 S.E.2d 162; Morton v. Western Union Telegraph Co., 130 N.C. 299, 41 S.E. 484; Eller v. Carolina & N. W. R. Co., 140 N.C. 140, 52 S.E. 305, 3 L.R.A., N.S., 225; Thigpen v. Kinston Cotton Mills, 151 N.C. 97, 65 S.E. 750; Cooper v. Southern Express Co., 165 N.C. 538, 81 S.E. 743; Fleming v. Carolina Power & Light Co., 229 N.C. 397, 50 S.E.2d 45; Ellington v. Bradford, 242 N.C. 159, 86 S.E.2d 925; 1 Am.Jur.2d 644.

We also held that claims for unpaid wages were choses in action which could be assigned, and a single assignee or several assignees holding jointly could maintain one action to recover the several sums assigned to them. In such an action, Rule 20 (2) of this Court would apply and each claim should be set out as a separate and distinct cause of action.

We did not then decide the question of misjoinder because we thought plaintiffs should have an opportunity to restate and reconcile seemingly conflicting factual allegations with respect to the alleged assignments. Accordingly we remanded with permission to apply to the Superior Court to amend. Permission was granted and an amended complaint was filed.

The amended complaint changes the phrase following plaintiffs' names in the caption from 'jointly and as assignees' to 'joint assignees.' The other amendment, so far as pertinent to the question under consideration was in sec. XVI of the complaint. That section then read and now reads: 'The defendants owed December 1, 1958 by reason of the matters and things hereinabove alleged the following sums to the following salesmen:' (Then follows a tabulation showing the amount due each salesman.) Originally it said: 'Plaintiffs * * * are the owners and assignees of all the above listed claims. The assignments are in writing, and the plaintiffs individually and jointly are entitled to recover of the defendants * * *' It now reads: 'Plaintiffs * * * are the joint owners as assignees of all of the above listed claims, including those in their own names to wit: Clarence L. Morton, Jr., Charles A. Diggs, Carroll D. Oglesby. The assignments are each in writing and each are executed by each of the fifteen salesmen as assignors listed above and are as follows:' (Emphasis added.) Then follows a copy of the assignment which each salesman executed.

The allegation that plaintiffs are joint owners as assignees is not an allegation of fact; it merely alleges plaintiffs' interpretation of the effect of the fifteen assignments. The assignments recite a consideration of one dollar and other valuable considerations for which the assignor transfers, sells, conveys, and assigns 'unto Clarence L. Morton, Charles A. Diggs, and Carroll D. Oglesby, individually and collectively' all sums due assignor by defendants arising or growing out of his contract as a salesman for defendants. The assignment further reads: 'I am advised, believe, assert and have asserted that E. P. Thornton and Elizabeth P. Thornton, partners, failed to pay the full amount of the commissions due me for the year ending November 30, 1958, and, particularly, the full amount of commissions upon a proper and legal accounting for the sales classified as MADE-RITE transactions. It is with particular reference to these commissions, although not limited thereto, that this assignment shall be effective. The said assignees have the full right and power to act individually or together in their individual names as assignees or in the event, for any reason, this assignment is held void, they shall be decmed to act in their own name or names and individual capacity or capacities for me as my agent coupled with an interest.' (Emphasis added.)

Every action must be brought by the real party in interest. G.S. § 1-57. An assignee of a contractual right is a real party in interest and may maintain the action. Brown, J., defined the term 'assignment' in Ormond v. Connecticut Mutual Life Ins. Co., 145 N.C. 140, 58 S.E. 997. He said: 'An assignment is substantially a transfer, actual or constructive, with the clear intent at the time to part with all interest in the thing transferred and with a full knowledge of the rights so transferred.' 6 C.J.S. Assignments § 1, p. 1045; 6 Am.Jur.2d 185.

Since an assignment is a conveyance, it requires an assignor, an assignee, and a thing assigned. As said by Adams, J., in Boyd v. Campbell, 192 N.C. 398, 135 S.E. 121: 'In every conveyance of land there must be a grantor, a grantee,...