Rose v. Fremont Warehouse &. Improvement Co, (No. 120.)
| Decision Date | 05 October 1921 |
| Docket Number | (No. 120.) |
| Citation | 108 S.E. 389 |
| Court | North Carolina Supreme Court |
| Parties | ROSE. v. FREMONT WAREHOUSE &. IMPROVEMENT CO. et al. |
Appeal from Superior Court, Wayne County; Lyon, Judge.
Action by W. P. Rose against the Fremont Warehouse & Improvement Company, in which Benton & Benton were made parties and in which the defendant set up a pleading by way of cross-action and counterclaim, to which Benton & Benton demurred. Demurrer sustained, and defendant appeals. Affirmed.
Civil action to recover the balance due on a building contract. Upon motion of the defendant, Fremont Warehouse & Improvement Company, the architects, Benton & Benton, who drew the plans and specifications for said buildings, were made parties defendant. The original defendant then answered, admitted the plaintiff's contract, but set up by way of cross-action and counterclaim the following:
"That by the terms of the contract entered into between the plaintiff and this defendant the plaintiff agreed to have said buildings constructed in a proper and workmanlike manner, which, as this defendant is informed and believes, he failed to do, in that the roof trusses of both of said tobacco warehouses were improperly constructed by the plaintiff, and that by reason of said defective construction the said trusses have buckled, thereby rendering the roofs of said warehouses unsafe and dangerous and thereby rendering said buildings defective and unworkmanlike in their construction; or that if the buckling of the trusses is not caused by improper and unworkmanlike construction by said plaintiff, it is due to the defective plans and specifications prepared and delivered by said defendants Benton & Benton; and that by reason of the said improper and unworkmanlike construction or by reason of the defective plans and specifications, or by reason of both the improper and unworkmanlike construction and the defective plans and specifications, this defendant is damaged in the sum of $20,000."
Benton & Benton demurred to this pleading upon the ground of a misjoinder of parties and causes of action. The demurrer was sustained, and the defendant, Fremont Warehouse & Improvement Company, appealed.
E. M. Land and Dickinson & Freeman, all of Goldsboro, for Fremont Warehouse & Improvement Co.
W. A. Lucas, of Wilson, and Langston, Allen & Taylor, of Goldsboro. for Benton & Benton.
STACY, J. [1] It will be observed from the allegations of the defendant's cross-action and counterclaim that the architects, who furnished the plans and specifications, did not undertake to superintend the erection and construction of the buildings. Their agreement called for the preparation and delivery of the plans and specifications and no more. The buildings were constructed by the plaintiff, but without assistance from or consultation with the...
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...Schnepp v. Richardson, supra; Beam v. Wright, supra; Wingler v. Miller, supra; Montgomery v. Blades, supra; Rose v. Fremont Warehouse & Improvement Co., 182 N.C. 107, 108 S.E. 389; Coulter v. Wilson, 171 N.C. 537, 88 S.E. 857; Hulbert v. Douglas, supra. Such controversies are wholly foreign......
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