Board of Education v. . Deitrick , 221 N.C. 38 ( 1942 )

Defendant Thompson, a building contractor, entered into an agreement with plaintiff to construct a school building at Windfall in Perquimans County according to plans and specifications. Defendant Deitrick was the architect. Plaintiff alleges that defendants failed to provide adequate ventilation in the foundation of said building and used green, inferior and defective material in the construction of same, and that the defendants fraudulently concealed from plaintiff the failure to provide such ventilation and the use of such inferior and defective lumber and material. It seeks to recover damages therefor.

The defendant Thompson, answering, denied any fraudulent concealment and alleged in further defense that if green, inferior and defective lumber was used, it was purchased from Major Loomis Company, which company in turn fraudulently concealed from the defendant the nature and condition of such lumber. He thereupon moved that Major Loomis Company be made a party defendant and required to answer his cross action in respect thereto. The motion was denied and said defendant appealed. There is no privity between plaintiff and Major Loomis Company. Any fraudulent concealment of the condition of the lumber sold by Major Loomis Company to the defendant Thompson constitutes a wrong committed by it against Thompson. Plaintiff is not concerned therewith. The alleged wrong committed by the defendant Thompson, if committed at all, is an independent tort against the plaintiff. Major Loomis Company did not participate therein. It is in no sense a joint tort-feasor. The motion was properly denied. Hoover v. Indemnity Co., 202 N.C. 655, 163 S.E. 758;Brown v. R. R. Co., 202 N.C. 256, 162 S.E. 613; Bost v. Metcalfe,219 N.C. 607, 14 S.E.2d 648.

Affirmed.