Kearns v. . Heitman

Merrimon, C. J. — after stating the facts: As soon as the principal defendant collected any one, or any part of one, or all, of the promissory notes in which the plaintiff had a half interest, one-half of the money as such, so collected, became that of the plaintiff, and the law at once implied a promise or obligation of the defendant to pay the same to the plaintiff, and this, apart from, independent of, and without regard to, the note or notes collected, or any contract in respect to them. All the money so in the hands of the defendant at any time — not parts of it, as item one from one source, and item two from another source, and so on, but as a whole— belonged to the plaintiff, and his demand against the defendant was not for part, but for the whole of it. The defendant, having the money, was chargeable with it as a whole, as money had and received to the plaintiff’s use, and a single action, not two or severally in favor of the plaintiff to recover it. It is not the purpose of the present action to recover one-half of a promissory note within the jurisdiction of the Court of a Justice of the Peace — it is not to recover money due by contract to pay a particular sum, or to recover the price of goods or other things sold on a particular, distinct occasion, or time, but it is to recover money of the plaintiff in the hands of the defendant, as to which the law implies a promise or liability of the latter to pay the former, not in parts, but *334 the whole thereof that he may have at any one time, no matter from what source it arose or came, or whether the sources be few or many. This case is unlike Caldwell v. Beatty, 69, N. C. 365, and Boyle v. Robbins, 71 N C., 130. These cases rest upon the ground that a series of separate charges for goods sold and delivered at different times, or labor performed at different times, may each be a separate cause of action and the subject of a distinct action, though all embraced in the same account, the reason assigned being that there is a succession of several distinct contracts as to each item of charge. This is a case wherein the law implied and raised the promise and liability on the part of the defendant to pay to the plaintiff any sum of money he received for him at once on receiving it, and the latter might then have brought his action for the same, certainly, upon demand and refusal to pay, but if he- delayed to do so until the defendant received other moneys for him, then the implied liability was enlarged; it attached at once to the further sums of money so received, not as a separate and distinct liability, but as one liability for the whole sum of money in his hands. The law' does not- unnecessarily imply, nor will ti give, a multiplicity of causes’ of action and distinct actions to enforce the same. It is thorough in its purposes and operations to establish, secure and administer rights, but it avoids and eschews, as far as practicable, whatever is unnecessary, redundant, and vexatious, however and whenever the demand for such thing may arise. As to when the several and distinct actions-may be maintained, and when not, for distinct items of charge, made at several times and embraced in the same account, see the cases cited, supra, Magruder v. Randolph, 77 N. C., 79; Jarrett v. Self, 90 N. C., 478; Moore v. Nowell, 94 N. C., 268. The evidence of the plaintiff' produced on the trial, accepted as true, proved that the plaintiff’s cause of action, *335 not severable, was greater than $200, exclusive of interest, and, therefore, was not within the jurisdiction of a Justice of the Peace, and the Court should, on that account, have granted the motion of the defendant to dismiss the action. The judgment must be set aside and the action dismissed. Error.