Perry v. Doub , 238 N.C. 233 ( 1953 )

77 S.E.2d 711 (1953) 238 N.C. 233

PERRY et al.
v.
DOUB et al.

No. 450.

Supreme Court of North Carolina.

September 23, 1953.

Samuel Pretlow Winborne and Vaughan S. Winborne, Raleigh, for plaintiffs, appellants.

Mordecai & Mills, Raleigh, for defendant, appellee.

JOHNSON, J.

G.S. § 1-123 provides in part: "The plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of— * * *. 2. Contract, express or implied."

Here all five causes of action declared on in the complaint arise out of contract. The first two are for the recovery, by way of recoupment as against the defendant Robertson, for moneys alleged to have been wrongfully withheld by him under the loan contracts of $22,000 and $3,000. 47 Am.Jur., Set-off and Counterclaim, Sections 2 and 9. The third and fourth causes are to have the interest stricken from the loans as the penalty for charging usury. G. S. § 24-2. An action for such relief from usury is deemed an action on contract. Commercial Finance Co. v. Holder, 235 N.C. 96, 68 S.E.2d 794. In the fifth cause of action the plaintiffs seek special damages for breach of express contracts to lend money.

It necessarily follows that there is no misjoinder of causes of action.

Nor does the joinder of Doub, Trustee, work a misjoinder of parties. The terms of the trust agreement and the deposit of settlement funds with Doub, Trustee, make him a proper party to the action. Besides, the joinder of an unnecessary party defendant is mere surplusage. Moore County v. Burns, 224 N.C. 700, 32 S.E.2d 225; Sullivan v. Field, 118 N.C. 358, 24 S. E. 735. It is the misjoinder of both parties and causes that works a dismissal of an action, Smith v. Greensboro Joint Stock Land Bank, 213 N.C. 343, 196 S.E. 481; and where both occur, severance is not permissible. Teague v. Silver City Oil Co., 232 N.C. 65, 59 S.E.2d 2.

The demurrer as interposed does not present for review the question whether the plaintiffs are entitled to recover punitive damages. If good in any respect or to any extent, a plea will not be overthrown by general demurrer. Pharr v. Pharr, 223 N. C. 115, 25 S.E.2d 471; Byers v. Byers, 223 N.C. 85, 25 S.E.2d 466; Griffin v. Baker, 192 N.C. 297, 134 S.E. 651. Besides, the rule is that ordinarily a general demurrer is not the proper mode of testing the extent of recovery to be had or of determining the rule that shall govern for the measurement of damages. 41 Am.Jur., Pleading, Sec. 219; 15 Am.Jur., Damages, Sec. 310.

Nor does this record present for review the question whether the plaintiffs are estopped by the terms of the trust agreement from prosecuting claim for any sum other than the $7,677.18 referred to in the trust agreement. Conceding that where matter constituting an estoppel is shown on the face of the opponents pleading, ordinarily the question of estoppel may be raised by demurrer, even so, the demurrer must be special, rather than general, and point out specifically the matter constituting the estoppel. Williams v. Aldridge Motors, Inc., 237 N.C. 352, 75 S.E.2d 237; Wilson v. Horton Motor Lines, 207 N.C. 263, 176 S.E. 750; Oldham v. McPheeters, 201 N.C. 35, 158 S.E. 702; 19 Am.Jur., Estoppel, Sec. 182, P. 839; Annotation 120 A. L.R. 8, p. 84. Here the demurrer is silent on the question of estoppel, and it does not appear to have been ruled upon in the court below. Hence we refrain from doing so. The function of this Court is to review alleged errors and rulings of the trial court and not to chart the course of the lower court in advance of its rulings. Grandy v. Walker, 234 N.C. 734, 68 S.E.2d 807; Greene v. Spivey, 236 N.C. 435, 73 S. E.2d 488.

The defendant's demurrer ore tenus to the fifth cause of action for failure to state facts sufficient to constitute a cause of action is without merit. In point of fact and in legal contemplation the fifth cause is but an amplification of the first two causes of action by the addition of averments of special damages. In the first two causes only the loan moneys allegedly withheld are sought to be recovered by way of recoupment as against Robertson, whereas in the fifth cause of action the allegations are extended to cover special damages based on crop failure and farm losses resulting from Robertson's failure and refusal to pay the plaintiffs the full amounts due under the loan contracts, the pertinent allegations of the fifth cause of action being in substance (1) that the purpose of the loan contracts of $22,000 and $3,000 was in part "to provide capital for the plaintiffs' farming operations for that farm year"; (2) that the defendant Robertson wrongfully withheld from the plaintiffs $6,367.66; and (3) that on account of the defendant's refusal to pay over these moneys the plaintiffs were unable to cultivate, harvest, and house their five acres of tobacco, and that as a result they suffered financial loss in a stated amount. Scott v. Aetna Life Ins. Co., 205 N.C. 38, 169 S.E. 801; Wilson v. Horton Motor Lines, supra. See also Williams v. Aldridge Motors, Inc., supra.

We are not concerned with whether the plaintiffs may be able to make out their case, nor with the extent of their right of recovery. These are matters to be determined when the plaintiffs have produced their proofs. See Brewington v. Loughran, 183 N.C. 558, 112 S.E. 257, 28 A.L.R. 1543; Perry v. Kime, 169 N.C. 540, 86 S.E. 337; Herring v. Armwood, 130 N.C. 177, 41 S.E. 96, 57 L.R.A. 958; Spencer v. Hamiltion, 113 N.C. 49, 18 S.E. 167. Upon the record as presented we conclude that they are entitled to be heard on the merits of their case.

The demurrer ore tenus is overruled and the judgment below is

Reversed.