Foote v. C. W. Davis & Co.

Babnhill, J. The record before us presents this situation: Defendant contracted to purchase one hundred cases of prunes but later breached the contract. Plaintiff Foote Bros. & Company asserts that it was the vendor and as such is entitled to damages for the wrongful breach of contract. On the other hand, Guggenhime & Company alleges that it, as vendor, sold the merchandise to defendant through Foote Bros. & Company as agent or broker, and prays that it recover the damages resulting from the defendant’s breach of contract. Thus defendant is faced with two separate and distinct demands. Foote Bros. & Company pleads one contract, Guggenhime another. One is asserted by one plaintiff and one by the other. Each plaintiff says it was the vendor. There is no joint or common interest in the claim asserted. Instead, each contradicts the other. If Foote’s claim is well founded, Guggenhime has no interest therein. If Guggenhime was the vendor, such claim as Foote Bros. & Company may have for commissions and other charges is against Guggenhime and not the defendant. If Foote Bros. & Company was the vendor, Guggenhime must look to it for payment. This presents a clear case of misjoinder of parties and causes of action. Hence the demurrer was well advised.’ The order overruling the same must be held for error on authority of numerous decisions of this Court, among which the following are in point: Davis v. Whitehurst, 229 N.C. 226; Beam v. Wright, 222 N.C. 174, 22 S.E. 2d 270; Wingler v. Miller, 221 N.C. 137, 19 S.E. 2d 247; Frederick v. Insurance Co., 221 N.C. 409, 20 S.E. 2d 372; Osborne v. Canton, 219 N.C. 139, 13 S.E. 2d 265; Burleson v. Burleson, 217 N.C. 336, 7 S.E. 2d 706; Smith v. Land Bank, 213 N.C. 343, 196 S.E. 481; Vollers Co. v. Todd, 212 N.C. 677, 194 S.E. 84. *424 Tbe new party was not brought in on motion of defendant. It acted voluntarily. Hence, Grant v. McGraw, 228 N.C. 745, 46 S.E. 2d 849, is not controlling here. Tbe judgment below is Reversed.