Hatcher v. . Williams

Stacy, C. J. The case involves tie right of plaintiff to amend the complaint, and the appropriateness of the-amendment filed. First, in respect of the permission granted the plaintiff to amend the complaint, it is enough to say this was a matter resting in the sound discretion of the trial court. G. S., 1-163; McIntosh on Procedure, 512. Secondly, the appropriateness of the amendment, while stressfully challenged, is to be found in its consistency with the gravamen of the complaint. The action is for an accounting. The agreement of 2 September, 1942, outlines the rights of the parties in respect of the properties mentioned therein; and as to these, it may be controlling within the limits of its provisions. It is alleged in the amendment, however, that the so-called “adjacent” tract in Cleveland County was omitted'therefrom by fraud of the defendant. This is admitted by the demurrer. The parties were not at arm’s length at the time of the execution of the *114 agreement. May v. Loomis, 140 N. C., 350, 52 S. E., 728. An allegation of fraud against a fiduciary in an action for an accounting calls for an answer. McNeill v. McNeill, 223 N. C., 178, 25 S. E. (2d), 615; Small v. Dorsett, 223 N. C., 754, 28 S. E. (2d), 514; Hinton v. West, 207 N. C., 708, 178 S. E., 356. To say that the amendment undertakes to join an action in tort with one on contract in the same complaint is to regard the proceeding strictly as an action at law rather than a suit in equity. Even so, they both arise out of the same transaction, or transactions “connected with the same subject of action.” G. S., 1-123. Where such is the case, they may be joined in the same complaint. Cheatham v. Bobbitt, 118 N. C., 343, 24 S. E., 13; Solomon v. Bates, 118 N. C., 311, 24 S. E., 478, 54 Am. St. Rep., 725; McIntosh on Procedure, 433. Anyhow, herein lies the basis for the divergent views. * It appears to be a misconception of the theory of the complaint to assert that plaintiff has assumed mutually contradictory positions in respect of the same state of facts, or that she is seeking to affirm the contract in the complaint and to deny it in the amendment. This, of course, if true, would put the plaintiff to an election. Lykes v. Grove, 201 N. C., 254, 159 S. E., 360. The substance of the amendment is, that Williams took advantage of his fiduciary position, acquired an “adjacent” tract through other sources, combined it with the limestone tracts and leased the three together; that he afterwards paid for the “adjacent” tract out of royalties from all three, then made a profit which he omitted to share equitably with Cole, and that the essential facts in respect of the matter were suppressed at the time of the execution of the agreement of 2 September, 1942. This too would seem to call for an answer. Speight v. Trust Co., 209 N. C., 563, 183 S. E., 734; Bryant v. Bryant, 193 N. C., 372, 137 S. E., 188; Smith v. Moore, 149 N. C., 185, 62 S. E., 892. One who acts for another, or assumes the obligations of a fiduciary, is under the compulsion of fair play and good faith in respect of the interests of his principal or the confiding party. 25 C. J., 1119. The demurrer was properly overruled. Affirmed.