Shuford v. . Yarborough , 197 N.C. 150 ( 1929 )

Civil action by plaintiff, receiver, to recover of J. A. Yarborough $60,625.84, moneys alleged to have been unlawfully abstracted and misappropriated by him while acting as president and treasurer of the Y. B. Corporation, and to hold the Eagle Indemnity Company liable for said defalcations to the extent of $10,000 on its written guaranty of the fidelity of said officer.

A demurrer was interposed chiefly upon the grounds (1) of an alleged defect of parties, and (2) of an alleged misjoinder, both of parties and of causes of action.

From a judgment overruling the demurrer, the defendants appeal, assigning errors. The demurrer was properly overruled on both grounds. C. S., 507 and annotations.

A "defect of parties" applies to necessary parties, and not to unnecessary ones. Winders v. Hill, 141 N.C. 694, 54 S.E. 440.

It is not a misjoinder of parties and causes for the receiver of a corporation to sue its president and treasurer for wrongfully abstracting and misappropriating funds of the corporation and at the same time join as party defendant his surety or the guarantor of his honesty and fidelity.Carswell v. Talley, 192 N.C. 37, 133 S.E. 181; Robinson v. Williams,189 N.C. 256, 126 S.E. 621; Chemical Co. v. Floyd, 158 N.C. 455,74 S.E. 465; S. v. Bank, 193 N.C. 524, 137 S.E. 593.

The case of Clark v. Bonsal, 157 N.C. 270, 72 S.E. 954, is not in point, for there the contract between the defendants was one of strict indemnity against "loss actually paid." The allegations of the present complaint are to the effect that the defendant, Eagle Indemnity Company, "guarantees the fidelity of the president and treasurer of the Y. B. Corporation in the sum of $10,000, . . . and agrees to make good any loss sustained by reason of his dishonesty, theft or wrongful abstraction," etc., and that loss has already been sustained within the terms of the contract of guaranty.

Affirmed.