Pickelsimer Ex Rel. Gash v. Pickelsimer

121 S.E.2d 586 (1961) 255 N.C. 408

Juanell Petit PICKELSIMER, by and through her Next Friend, Robert T. Gash,
v.
Charles W. PICKELSIMER, Jr., and Joseph Pickelsimer, Executors of the Estate of C. W. Pickelsimer, Sr., deceased.

No. 34.

Supreme Court of North Carolina.

September 27, 1961.

Redden, Redden & Redden, Hendersonville, J. Bruce Morton, Brevard, for defendants-appellants.

Uzzell & DuMont, Asheville, Hamlin, Potts, Ramsey & Hudson, Brevard, for plaintiff-appellee.

WINBORNE, Chief Justice.

The question presented on this appeal is: Did the court below err in denying defendants' motion to make Blanche Petit Goosen a party to this action? The answer is No.

While the minor plaintiff is not a party to the alleged contract between her mother and the defendants' testator, she is a beneficiary under it to the extent that the promises contained therein relate to her. And if the defendants' testator breached the contract, plaintiff would have a cause of action against him for recovery of damages. Redmon v. Roberts, 198 N.C. 161, 150 S.E. 881.

In this respect, in Brown v. Bowers Construction Co., 236 N.C. 462, 73 S.E.2d 147, 151, this Court said: "It is a well-settled principle of law in this State that where a contract between two parties is made for the benefit of a third person, or party, the latter is entitled to maintain an action for its breach." Gorrell v. Greensboro Water Supply Co., 124 N.C. 328, 32 S.E. 720, 46 L.R.A. 513; Parlier v. Miller, 186 N.C. 501, 119 S.E. 898; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A.L.R. 428; Boone v. Boone, 217 N.C. 722, 9 S.E.2d 383; Chipley v. Morrell, 228 N.C. 240, 45 S.E.2d 129; Coleman v. Mercer, 229 N.C. 245, 49 S.E.2d 405; Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566; and cases there cited.

However, the defendants contend that minor plaintiff's mother, Blanche Petit Goosen, as a party to the contract, is a necessary party to this action.

In Gaither Corporation v. Skinner, 238 N.C. 254, 77 S.E.2d 659, 661, Devin, C. J., speaking for the Court said: "`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 interest might 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. & 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.

Thus it appears that Blanche Petit Goosen is not a necessary party to the action. Further, if it should appear that she is a proper party, the court's refusal to make her a party to the action would be within its discretion and therefore not reviewable.

Affirmed.