Gaither Corporation v. Skinner

77 S.E.2d 659 (1953) 238 N.C. 254

GAITHER CORPORATION
v.
SKINNER et al.

No. 27.

Supreme Court of North Carolina.

September 23, 1953.

Barden, Stith & McCotter, New Bern, and John H. Hall, Elizabeth City, for defendant, appellant.

LeRoy & Goodwin, Elizabeth City, for C. R. Hopkins, appellee.

Worth & Horner, Elizabeth City, for plaintiff.

DEVIN, Chief Justice.

We concur with the view of the court below that C. R. Hopkins is not a necessary party to the action which the Gaither Corporation has instituted against defendant Skinner for damages for faulty and defective material used by him in the construction of plaintiff's building in breach of the terms of the contract entered into between plaintiff and Skinner. We think the action of the court in dismissing Hopkins from the action should not be held for error.

It may be conceded that plaintiff might have maintained action against Hopkins on his sub-contract with Skinner, as one made for the benefit of the plaintiff, Brown v. Bowers Construction Co., 236 N.C. 462, 73 S.E.2d 147, and that Hopkins might have been a proper party in a suit involving the liability of both, but that would not entitle appellant to reversal of the order of Judge Bone dismissing Hopkins from the present action which plaintiff has instituted against defendant Skinner. Spruill v. Bank of Plymouth, 163 N.C. 43, 79 S.E. 262; Aiken v. Rhodiss Mfg. Co., 141 N.C. 339, 53 S.E. 867. "The making of new parties defendants where they are not necessary is a matter within the discretion of the trial judge, and his refusal is not reviewable." Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859. "Necessary or indispensable parties are those whose interests are such that no decree can be rendered which will not affect them, and therefore the court cannot proceed until they are brought in. Proper parties are those whose interests may be affected by a decree, but the court can proceed to adjudicate the rights of others without necessarily affecting them, and whether they shall be brought in or not is within the discretion of the Court." McIntosh, Prac. and Proc., Sec. 209, p. 184; Colbert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231.

The plaintiff has elected to pursue his action against the contractor with whom he contracted in order to recover damages for an alleged breach of that contract, and plaintiff should be permitted to do so without having contested litigation between the contractor and his sub-contractor projected into the plaintiff's lawsuit. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397.

The exact question here presented does not seem to have been heretofore decided by this Court. However, in Board of Education of Perquimans v. Deitrick, 221 N.C. 38, 18 S.E.2d 704, where the general contractor, who had been sued for damages for using green and defective lumber in the building, moved to make the lumber dealer from whom he obtained the material a party, it was held that the motion was properly denied. Under the facts of that case there was no privity between plaintiff and the lumber dealer, nor were the contractor and sub-contractor joint tort-feasors.

The statute permitting joint tortfeasors to be brought in for the purpose of enforcing contribution does not apply here. G.S. § 1-73. Nor does an issue as to primary and secondary liability arise in this case as in Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859, and in cases of similar nature. See also Moore v. Massengill, 227 N.C. 244, 41 S.E.2d 655, 170 A.L.R. 147; Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 484.

We conclude on the record here presented that the order dismissing defendant Hopkins from the action should be

Affirmed.