Snotherly v. Jenrette
| Decision Date | 08 November 1950 |
| Docket Number | No. 455,455 |
| Court | North Carolina Supreme Court |
| Parties | SNOTHERLY et al. v. JENRETTE et al. |
F. T. Dupree, Jr., Raleigh, for plaintiffs appellants.
Lassiter, Leager & Walker, Raleigh, for defendants appellees.
The facts alleged in the complaint to which the demurrer was directed were substantially these:
In December 1949 plaintiffs leased from defendants a building near Raleigh for the purpose of engaging in the restaurant business, and installed therein suitable equipment and fixtures. February 1, 1950, plaintiffs asked for reduction in rental or deferment of payment, and defendants replied with a proposal that plaintiff J. E. Snotherly should purchase the share and interest of H. A. Snotherly for $100, that defendants would make all delinquent payments on plaintiffs' equipment, and that on payment of the balance due thereon defendants would own two-thirds interest in all the assets and business and J. E. Snotherly one-third, J. E. Snotherly to operate the business and have a drawing account of $25 per week. It was proposed that the net profits should be divided, two-thirds to defendants and one-third to J. E. Snotherly, and that the previous lease of the building to the plaintiffs should be rescinded. Plaintiffs agreed to this proposal, and the defendants installed other equipment, and the restaurant was reopened for business under the new agreement. Two weeks later, on February 17, 1950, defendants informed J. E. Snotherly that they had decided to change the agreement, and that defendants would assume all bills, pay off unpaid balances on equipment and pay J. E. Snotherly $25, and let him out. Defendants said, 'We are not going any further.' J. E. Snotherly protested and declined the proposed change and refused the $25. Thereupon the defendants locked up the place and notified plaintiffs that their property must be removed by noon the following day. Plaintiffs instituted action with ancillary remedy of claim and delivery.
Plaintiffs alleged that defendants had wrongfully breached the agreement entered into, had wrongfully seized plaintiffs' property, and maliciously designing to deprive plaintiffs of their property and to convert same to their own use, had evicted plaintiffs and negotiated with plaintiffs' creditors in attempt to secure the mortgaged property; and further that as result of defendants' malicious conduct plaintiffs' property was withheld, their business destroyed, their relations with their creditors embarrassed, and their credit, standing and good name in the community damaged. Plaintiffs prayed that they recover $5,000 compensatory damages and $5,000 punitive damages, and that they be declared entitled to the possession of the property described in the affidavit in claim and delivery proceedings.
To this complaint the defendants demurred on the ground of misjoinder of parties and causes of action. The court below sustained the demurrer on this ground and dismissed the action.
It has been uniformly held by this Court that separate and distinct causes of action set up by different plaintiffs or against different defendants may not be incorporated in the same pleading, and that such a misjoinder would require dismissal of the action. Teague v. Silver City Oil Co., 232 N.C. 469, 61 S.E.2d 345; Foote v. C. W. Davis & Co., 230 N.C. 422, 53 S.E.2d 311; Southern Mills, Inc., v. Summit Yarn Co., 223 N.C. 479, 27 S.E.2d 289; Wingler v. Miller, 221 N.C. 137, 19 S.E.2d 247; Holland v. Whittington, 215 N.C. 330, 1 S.E.2d 813; Town of Wilkesboro v. Jordan, 212 N.C. 197, 193 S.E. 155; Roberts v. Utility Mfg. Co., 181 N.C. 204, 106 S. E. 664. But where several causes of action have been improperly united, the cause will not be dismissed and the court will sever the causes and divide the action. G. S. § 1-132; Southern Mills Co. v. Summit Yarn Co., 223 N.C. 479, 485, 27 S.E.2d 289; Gattis v. Kilgo, 125 N.C. 133, 34 S.E. 246. In the case at bar we note that it is alleged in the complaint that in accord with the defendants' proposal of February 3, 1950, to which the plaintiffs agreed, the interest of H. A. Snotherly in the assets and business was eliminated. Hence only one of the two parties named as plaintiffs would be entitled to the relief demanded...
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