Shore v. Holt

• Decision Date: 18 April 1923
• Docket Number: 394.
• Parties: SHORE ET AL. v. HOLT.
• Court: North Carolina Supreme Court

117 S.E. 165

185 N.C. 312

SHORE ET AL. v. HOLT.

No. 394.

Supreme Court of North Carolina

April 18, 1923

Appeal from Superior Court, Guilford County; Harding, Judge.

Action by Minnie Shore and husband against Lula Holt. From a judgment overruling demurrer on the ground of misjoinder defendant appeals. Cause remanded.

Civil action to recover upon a quantum meruit for services rendered and for an accounting.

The defendant demurred upon the ground that there was a misjoinder, both of parties and of causes of action. Demurrer overruled. Defendant excepted and appealed.

John A Barringer, of Greensboro, for appellant.

STACY J.

The feme plaintiff alleges that in 1908 she was a ward of the Children's Home Society of North Carolina, Inc.--being only ten years old at that time--and that she was induced to go and live in the home of the defendant with the assurance that she (the feme plaintiff) would be adopted as a child of the defendant and thereby become entitled to receive, at the death of the defendant, a child's share of her estate. The plaintiff, relying upon this promise, changed her name went into the home of the defendant, and rendered every kind of service required of her by the defendant. She alleges that she cooked, washed dishes, milked the cow, nursed the defendant's husband in his sickness, attended to many of the chores about the house, worked in the cotton mill and in the cigar factory, and turned over her wages to the defendant.

On August 1, 1915, the feme plaintiff was married to Charles Shore, who also worked for the defendant for a period of eight months immediately thereafter. Plaintiff later learned that she had not been legally adopted by the defendant, and it is alleged that the defendant has now disavowed her intention to carry out her promise.

The feme plaintiff brings this action to recover upon a quantum meruit for the value of the services rendered by her to the defendant under the promise of reward as above set out. For the right to maintain her action, she relies upon the line of cases of which the following are representative: Hayman v. Davis, 182 N.C. 563, 109 S.E. 554; McCurry v. Purgason, 170 N.C. 463, 87 S.E. 244, Ann. Cas. 1918A, 907; Debruhl v. Trust Co., 172 N.C. 839, 90 S.E. 9; Patterson v. Franklin, 168 N.C. 75, 84 S.E. 18; Winkler v. Killian, 141 N.C. 575, 54 S.E. 540, 115 Am. St. Rep. 694; Whetstine v. Wilson, 104 N.C. 385, 10 S.E. 471; Miller v. Lash, 85 N.C. 51, 39 Am. Rep. 678.

Charles Shore is joined as a coplaintiff with his wife; and, in the present suit, coupled with his wife's complaint, he has set up a separate and independent cause of action for services rendered by him and for an accounting for the eight months he was with the defendant.

The basis of the demurrer is that there is a misjoinder, both of parties and of causes of action. Where this occurs, it has been held with us that the demurrer should be sustained and the action dismissed. Roberts v. Mfg. Co., 181 N.C. 204, 106 S.E. 664; Thigpen v. Cotton Mills, 151 N.C. 97, 65 S.E. 750. Clearly, the two causes of action are separate and distinct; and, if the feme plaintiff's husband has been improperly joined as a party plaintiff in her suit, the demurrer should be sustained and the action dismissed under authority of the cases just cited. But if the joinder of the husband, as a formal party, in the wife's suit, is a matter of no special moment, as was said in Patterson v. Franklin, 168 N.C. 77, 84 S.E. 18, it would seem that she should be allowed to proceed on her cause of action with the allegations of her husband stricken from the complaint.

When several causes of action have been improperly united, the court may...