Citation Numbers: 1 N.C. App. 347
Judges: Campbell, Morris, Perker
Filed Date: 6/12/1968
Status: Precedential
Modified Date: 7/20/2022
The sole question presented by this appeal is one of interpretation of pleadings. The plaintiff contends that the orig
Plaintiff alleges a contract between it and the original defendant, a balance due thereon, demand therefor, failure to pay, and that “no portion or part thereof is subject to any setoff or counterclaim”. The complaint also alleges that defendant “without justification, withheld from the amount due the plaintiff pursuant to said contract” the balance allegedly due and sued for in this action. The original defendant, by answer, admitted the contract but denied that construction was completed in all respects as agreed, denied that any sum was withheld without justification, denied that any balance was due, denied the allegation that no portion of the balance due was subject to setoff or counterclaim and, in its further answer, counterclaim and offset, averred that the contract between the parties included an agreement that defendant would continue its manufacturing operations and administrative work in the existing plant and office and that the plaintiff would take all necessary precautions to protect the existing properties and operations of the original defendant during the construction. The original defendant additionally averred that plaintiff knew there were supplies in the existing facilities; that although notified by defendant that these supplies had been left exposed when there was imminent probability of rain, plaintiff failed to take necessary precautions as it agreed to do and defendant’s supplies and properties were damaged by water; that the damage resulted from plaintiff’s negligent breach of the contract and defendant is entitled to offset its damages against the contract price; that defendant had tendered a check to plaintiff for the balance due less its damage and by reason of the payment and offset it was not indebted to plaintiff.
The counterclaim sounds in contract and riot in tort. Here, the
“ ‘If the transaction complained of had its origin in a contract which placed the parties in such a relation that, in attempting to perform the promised service, the tort was committed, then the breach of the contract is not the gravamen of the suit. The contract in such case is mere inducement, creating the state of things which furnishes the occasion of the tort, and in all such cases the remedy is an action on the case. For illustration, take the contract of a carpenter to repair a house, — the implication of his contract is that he will bring to the service reasonable skill, good faith, and diligence. If he fails to do the work, or leaves the house incomplete, the only remedy against him is ex contractu; but suppose he, by want of care or skill, destroys or wastes material, or makes the repairs so unskillfully as to dam.age other portions of the house; this is tort, for which the contract only furnished the occasion. Mobile L. Ins. Co. v. Randall, 74 Ala. 170.' ”
Here, the plaintiff, as a part of the contract, specifically agreed to use all necessary precaution to protect the existing properties of original defendant during construction of the addition. Possible dam
The counterclaim and offset of the original defendant is based upon the same contract upon which the plaintiff brings the action. However, the cross action of the plaintiff against the additional defendants is based upon an entirely different contract between them in which the original defendant has no interest and to which it is not privy. There is, therefore, a misjoinder of parties and causes. The two causes of action are separate and distinct and set up against different parties. Rose v. Warehouse Co., 182 N.C. 107, 108 S.E. "389; Schnepp v. Richardson, 222 N.C. 228, 22 S.E. 2d 555.
An issue as to primary and secondary liability does not arise in this case nor is G.S. 1-240, permitting the bringing in for contribution of a joint tort feasor, applicable. Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E. 2d 659; Durham v. Engineering Co., 255 N.C. 98, 120 S.E. 2d 564.
The ruling of the court below sustaining original defendants demurrer to plaintiff’s cross action is
Affirmed.