D. C. Standard Homes Co. v. N. C. Standard Homes Co.

SHARP, J. Appeals in the litigation between A. Glendon Johnson and William W. Johnson growing out of the dissolution and sale of the partnership, N. C. Standard Homes Company, have been before us on three prior occasions. William W. Johnson and Lois F. Johnson, Trustee, v. A. Glendon Johnson, 255 N.C. 719, 122 S.E. 2d 676. A. Glendon Johnson v. William W. Johnson and Lois F. Johnson, Trustee, 259 N.C. 430, 130 S.E. 2d 876; A. Glendon Johnson v. William W. Johnson, 262 N.C. 39, 136 S.E. 2d 230. Defendant’s first ground for demurrer is that there is a mis-joinder of parties and causes of action. It argues, however, that the contract of 31 December 1953 was with A. G. Johnson only and not the partnership, D. C. Homes, and that there is, therefore, a mis-joinder of plaintiffs only. Although the complaint does not specifically allege an assignment, it is implicit therein that A. Glendon Johnson assigned to D. C. Homes whatever rights accrued to him under the contract executed on 31 December 1953. His partnership with his wife, Edna A. Johnson, trustee, was formed on 1 January 1954. Irrespective of any assignment, however, if the complaint discloses that Edna A. Johnson has no cause of action against defendant, there is no misjoinder of either parties or causes. Conference v. Piner, 267 N.C. 74, 147 S.E. 2d 581. The second ground for demur [185] rer, that the complaint discloses that the cause of action arose more than three years before its institution, is likewise without merit. The statute of limitations may not be taken advantage of by demurrer. Harrell v. Powell, 251 N.C. 636, 112 S.E. 2d 81. We assume, therefore, that his Honor sustained the demurrer upon the basis that the complaint failed to state a cause of action, and it is to this ground that we direct our attention. The 31 December 1953 contract between the Johnsons contains no provision that A. Glendon Johnson should receive one-half of the proceeds which N. 0. Homes received from the sale of basement-type home plans. On the contrary, it provided that his contribution to the partnership, in which he had a one-fourth interest, should be the ‘•'adequate preparation of new designs in advance of time for publication, furnished by him or his agents.” Although the contract speaks of sharing plans, plates, etc. “on a mutually profitable basis,” it contains no provision for payment to the other by either A. Glen-don Johnson (D. C. Homes) or William W. Johnson (N. C. Homes). Significantly, the complaint makes no mention of any payments made by plaintiff to defendant for the use of any basement-house plans furnished it by defendant. It does allege, however, that pursuant to the written contract plaintiff furnished the plates, plans, and house plan books to defendant without cost. The written contract, which is the basis of plaintiff’s action, is the antithesis of a lucid, legal document. Almost, it suggests a studied effort at ambiguity on the part of its draftsman. It does say with great clarity, however, “that this agreement contemplates no ‘tax dodge’ for any of the parties. . . Plaintiff bases its right to an accounting and a judgment against defendant upon the allegation that, by “agreement between the parties . . . custom, practice and usage of plaintiff company and defendant company, and pursuant to the said written agreement of January 1, 1954,” it was to receive one-half of the proceeds from the sales of all basement-type plate plans. (Presumably, by the “written agreement of January 1, 1954,” plaintiff meant the agreement of 31 December 1953, since the complaint speaks of 1 January 1954 as the “effective” date of the contract.) In its brief, plaintiff concedes that the custom and usage alleged in the complaint do not constitute a contract or take the place of a contract. Its contention is that, under the written contract, for more than nine years plaintiff and defendant “shared (plates and plans) on a mutually profitable basis,” and that there was a verbal agreement with reference to remitting profits from sales by defendant company, which failed to remit after January 1963. Plaintiff has, however, alleged no modification of the written contract nor the substitution of a subsequent oral agreement for the written con [186] tract in which A. Glendon Johnson was obligated .to furnish plates and plans to defendant as his' contribution to the partnership, N. C. Homes, in which he owned a one-fourth interest. The complaint, which is not the “plain and concise statement of the facts .constituting the cause of action” which G.S. 1-122(2) contemplates, merely lumps “agreement, custom and usage, and the said written contract.” It appears that the complaint contains conflicting and repugnant allegations of fact which “destroy and neutralize each other” — as Parker, C.J., said with reference to another complaint in one of the actions between A. Glendon Johnson and William W. Johnson. Johnson v. Johnson, 259 N.C. 430, 439, 130 S.E. 2d 876, 882. The complaint reveals that on 6 February 1962, N. C. Homes was sold under an order of the Superior Court, and that, since then, defendant has had no further interest in N. C. Homes. See also Johnson v. Johnson, 262 N.C. 39, 136 S.E. 2d 230. The contract of 31 December 1953 was based upon A. Glendon Johnson’s status as a partner in N. C. Homes. When his interest in the partnership terminated, so did the contract. According' to its allegations, plaintiff furnished defendant no plans or plan books after 6 February 1962. Nothing else appearing, we would assume that all books, plans, plates, etc. on hand on 6 February 1962 were sold as assets of the partnership and that, in the division of the proceeds, A. Glendon Johnson received his one-fourth part thereof. The complaint alleges, however, that the partnership was sold “subject to questions as to ownership by the partnership of the ‘name’ and rights to use certain ‘plates.’ ” What this allegation means or connotes, we do not know. If the title to any of the property, which was sold as partnership assets, was then in dispute and the judicial sale was made “subject to questions as to ownership,” it is nonetheless clear that the complaint in this case does not state a cause of action, either for conversion or for the recovery of' “plates,” plan books, or other personal property and damages for their detention. The demurrer was properly sustained. Judgment affirmed. LAKE, J. took no part in the consideration or decision of this case.