Quenby Corp. v. Frank H. Conner Co., 547

• Decision Date: 13 December 1967
• Docket Number: No. 547,547
• Citation: 272 N.C. 208,158 S.E.2d 18
• Parties: QUENBY CORP. v. FRANK H. CONNER COMPANY, Original Defendant; Monroe Mechanical Contractors, Inc.; Arrow, Inc.; Winecoff Electric Co., Inc.; W. J. Sullivan; and Interstate Roofing Co., Inc., Additional Defendants.
• Court: North Carolina Supreme Court

Page 18

158 S.E.2d 18

272 N.C. 208

QUENBY CORP. v. FRANK H. CONNER COMPANY, Original Defendant Monroe Mechanical Contractors, Inc.; Arrow, Inc.; Winecoff Electric Co., Inc.; W. J. Sullivan; and Interstate Roofing Co., Inc., Additional Defendants.

No. 547.

Supreme Court of North Carolina.

Dec. 13, 1967.

Richardson & Dawkins by Koy E. Dawkins, Monroe, for additional defendant appellant, Monroe Mechanical Contractors, Inc.

Grier, Parker, Poe & Thompson by William E. Poe and Gaston H. Gage, Charlotte, for additional defendant appellant, Interstate Roofing Co., Inc.

Gardner, Connor & Lee by D. M. Connor, Wilson, for original defendant appellee, Frank H. Conner Co.

Brown, Brown & Brown by Charles P. Brown, Albemarle, for additional defendant appellees, Winecoff Electric Co., Inc. and W. J. Sullivan.

PLESS, Justice.

An anomalous situation is presented in this case. Five subcontractors were made new parties--four of them demurred. The fifth filed an answer setting up a counterclaim against the original defendant, the contractor. The plaintiff moved to strike so much of the original defendant's further answer that in a practical sense it amounted to a motion to strike it in its entirety. This motion was denied, and plaintiff excepted but did not appeal. From adverse rulings upon the demurrers of the new parties, two defendants did not except. The other two, Interstate and Monroe, excepted and appealed.

It is apparent that the plaintiff and three of the subcontractors are content to have their litigation adjudicated in this action. If so, that was their right. The other two, Interstate and Monroe, by this appeal demonstrate their desire for different and separate methods. Even though it would be desirable to make a uniform ruling as to all five defendants, who occupy similar legal positions, we can rule only as to those who properly present their appeals. But with no uniformity of action by five who are uniformly affected by the ruling of the lower court, we are required to make what might appear as an incongruous decision.

The demurrers of the two appealing defendants are well taken. First because no claim has been made against them. 'There must be in the first place, of course, a claim asserted by the original defendant which, tested by the substantive rules discussed in the preceding section, makes out a Prima facie case on the pleading for relief over in favor of the original defendant, or third-party plaintiff, against the third-party defendant.' 1 McIntosh, North Carolina Practice and Procedure (1964 pp.), § 722.5, pp. 77 and 78. McIntosh further says in Footnote 19.21 at page 78:

'The allegations of such a cross-complaint are subject to the normal rules applying to the formal and substantive sufficiency of statement of any pleading asserting a cause of action for affirmative relief. Jones v. Douglas Aircraft Co., 253 N.C. 482, 117 S.E.2d 496 (1960).'

While Conner alleged in its further answer that Interstate had furnished 'extras' to the extent of $6,427.53 and that Monroe had furnished them in the amount of $8,475.30, it asked no relief against them. On the contrary, it alleged that the plaintiff was indebted to it and to Interstate and Monroe in these amounts; that the plaintiff had refused to pay therefor, liens had been filed against the plaintiff's property for the alleged indebtedness and prayed judgment against the Plaintiff for them. The tenor of the further answer was that Conner and the subcontractors had no controversy against each other but had a common cause against Quenby.

Even had there been a dispute between Conner and its subcontractors, it would not be germane to the plaintiff's cause of action because there is no allegation by the plaintiff of privity of contract existing between the additional party defendants and the plaintiff. In fact, the contract says: 'Nothing contained in the contract documents shall create any contractual relation between any subcontractor and the owner.'

This Court said in Moore v. Massengill, 227 N.C. 244, 41 S.E.2d 655, 170 A.L.R. 147, in reference to G.S. § 1--73:

'It is not intended to authorize the engrafting of an independent action upon an existing one which is in no way essential to a full and complete determination of the original cause of action. * * * 'But it does not imply that any person who may have cause of action against the plaintiff alone, or cause of action against the defendant alone, unaffected by the cause of action as between the plaintiff and defendant, may or must be made a party. It does not contemplate the determination of two separate and distinct causes of action, as between the plaintiff and a third party, or the defendant and a third party, in the same action."

G.S. § 1--69 p...