Withrow v. Southern Railway Co.

after stating the case: The demurrer was properly overruled. It is not based upon defect [of] parties, but because one had been joined as plaintiff who had no interest in the subject of the litigation, and was, therefore, an unnecessary party, which is not good cause for demurrer.Green v. Green, 69 N.C. 294; Sullivan v. Field, 118 N.C. 358; Worth v.Trust Co., 152 N.C. 242.

In the last case Justice Hoke, speaking for the Court, says: "Our decisions are to the effect that the joinder of unnecessary parties plaintiff or defendant is not good cause for demurrer. ``That there is a defect of parties plaintiff or defendant' is the language of our own statute, and numerous decisions with us have given the interpretation that the joinder of too many parties does not come within the statute."

In any event, however, the defendant received the full benefit of the objection raised by the demurrer, as his Honor instructed the jury that the plaintiff Withrow could not recover, and the defendant was not prejudiced by the delay in making the ruling, as all the material evidence introduced on the trial would have been competent with (226) the Chemical Company as sole plaintiff.

The motion for judgment of nonsuit, and the exception to the refusal of the instruction requested, involve the same question, and that is, the right of the Chemical Company to recover damages upon the evidence.

The defendant admits that as the stipulation that the guano was to be delivered at Caroleen was a part of the contract between the plaintiffs, that the title to the guano was in the Chemical Company at the time of the delay complained of (Summers v. R. R., 138 N.C. 295; Cardwell v. R. R.,146 N.C. 218), and it does not deny that there is evidence of damage, but it contends that the evidence shows that the Chemical Company received the full contract price for the guano and, therefore, says it has suffered no damage.

If it be conceded that this would constitute a defense to the claim for damages, the evidence does not, in our opinion, justify the construction placed upon it by the defendant. There were in the shipment 55 tons of guano, the contract price of which was $20.40 per ton, and 5 tons of acid, sold at the price of $14 per ton, making the total shipment at the price of $1,192.

The only evidence tending to prove that anything was paid the Chemical Company on account of this shipment was that of W. T. Purvis, an agent of the company, who testified as follows: "I made contract for plaintiff company to ship the two cars to Withrow. There were other car-loads shipped to Withrow. I don't think he settled with the company for these cars of guano. He gave notes and real estate mortgages to secure what he owed the company, but has not paid same. These cars of fertilizer were sold at public auction. Perry Hardin bought them and gave note to Withrow, and plaintiff company took the note as collateral to secure our debt against Withrow. This fertilizer was bid off by Hardin for $420."

This falls far short of sustaining the contention that the contract price of $1,192 was paid to the Chemical Company. The witness says he does not think any settlement was made for this shipment; that the plaintiff had bought other guano from the company and had given his note and mortgage for the indebtedness, and that $420 was realized from the shipment, which was paid to the company. (227)

It does not appear that any part of the value of this shipment was included in the note and mortgage, or that the plaintiff Withrow agreed to pay more than its value after it reached Caroleen, and as the guano was damaged while the property of the Chemical Company, the company was entitled to recover all damages which were caused by the negligence of the defendant.

We find no error in the record, and the verdict of the jury seems to be conservative.

No error.