Baker v. Carr Lumber Co.

Walkek, J. The plaintiff was not bound to submit absolutely to the judge’s ruling, but could except thereto and take a nonsuit, as he did, for he could not have recovered, under the judge’s view of the case. It is not a ease, therefore, wherein there is ground left upon which plaintiff might have succeeded in his action, the judge’s ruling having “cut úp his case by the roots.” The procedure he adopted was the only one to which he could safely resort and save his rights. It appears in this case that the two contracts, the one with the defendant and the other with the Penlands, were made at different times, the former having been made on 1 October, 1919, and the latter on 2 February, 1920. On their face they have no legal connection with each other. The contract with the defendant was made for the plaintiff’s benefit, and not for that of the Penlands, the contract with them not being in existence at the time the other contract of 1 October, 1919, was made, and there has been no assignment of any interest in the contract by the plaintiff to the Penlands. Even if it be true that the contract of February, 1920, created a partnership between plaintiff and the Penlands, it related only to the particular transactions referred to in the contract. *580 It is very certain that tbe defendant Carr Lumber Company did not enter into any sucb contract, and was not a party thereto, as its contract witb tbe plaintiff related to a separate and distinct matter, and tbe principles of law applicable to tbe two contracts are not tbe same, nor is tbe same rule of damages applicable to both. Tbe Penlands cannot sue on tbe contract witb tbe lumber company, for it bas made no contract witb them. They are not parties or privies to it, nor bas tbe contract, or any part of it, been assigned to them, nor was it made for tbeir benefit. If there bas been a breach of it, tbe damages would go to tbe plaintiff. Tbe action, therefore, must be confined to tbe parties named in tbe contract (Whitehead v. Reddick, 34 N. C., 95; Hardy v. Williams, 31 N. C., 177), not only because they are tbe only parties named therein, but because they are also tbe real parties in interest. We cannot change a contract, so as to give another a right or interest in tbe contract, which it does not confer, but must enforce it as we find it to be, and as tbe parties have made it in tbeir agreement. Norment v. Johnston, 32 N. C., 89. Referring to that case, Judge Battle said in Joyner v. Pool, 49 N. C., 293, at p. 295 : “Tbe ease of Norment v. Johnston, 32 N. C., 89, which is tbe only authority referred to and relied upon by tbe counsel for tbe plaintiffs, does not, in our estimation, aid tbeir case. Tbe principle therein decided was that one partner could not by a contract witb another person charge what was known to be bis individual debt to that person, upon tbe firm, without tbe consent of tbe other members of tbe firm. Surely that does not prove that an individual party to a contract' can convert that contract into one with a firm, without tbe consent, and to tbe prejudice, of tbe other party.” A contract is made only by consent or agreement of tbe parties to it (Norment v. Johnston, supra), and there is nothing here to take this case out of tbe rule. “There can be no contract in tbe true sense, that is, as distinguished from quasi or constructive contracts, in tbe absence of tbe element of agreement, or mutual assent of tbe parties. This, above all others, perhaps, is an essential element of every contract.” 9 Cyc., 245. Tbe two contracts are therefore separate and distinct, not having tbe same parties or tbe same subject-matter. Tbe opinion expressed by tbe court was not well founded, and was an erroneous view of tbe case. Tbe nonsuit is set aside, and a new trial ordered. New trial.