Davis v. Rexford

146 N.C. 418 | N.C. | 1907

Lead Opinion

CONNOR, J\,

after stating the case(: It is well settled by uniform decisions that the motion for removal is to be decided upon the pleadings and record as they are when the petition is filed. Does the complaint disclose a removable cause of action? Tobacco Co. v. Tobacco Co., 144 N. C., 352, and cases cited. The only question, therefore, open to us is, whether the plaintiff has in his complaint stated a cause of action against the resident and nonresident defendants disclosing a joint liability. That he may have sued them separately is not material in disposing of the petition for removal. Plaintiff is entitled to pursue his remedy in his own way, provided he does so in accordance with the rules of pleading and practice. That defendants have separate defenses does not affect the right of the plaintiff to sue them jointly, if he has a cause of action against them in which they may properly be joined. The complaint sets forth a joint agreement on the part of defendants to further a common purpose to the accomplishment of a common end. The defendants Rexford agreed to furnish the money; defendant Tucker was to investigate and pass upon titles, and plaintiff was to give his time and service in purchasing the properties, and these mutual contributions to the scheme, or venture, were to result in the common and equal benefit and profit of the parties to it. The promises were mutual, each constituting a consideration for the other. This being true, the cause of action is stated: “That the defendants and each and every of them failed and refused to carry out and perform said contract, and on or about .... May, 1904, the defendant W. A. Rexford notified plaintiff to discontinue work under said contract, and that defendants bad abandoned and would not further comply with said contract.” This is a clear allegation of a breach of the joint contract by all of the defendants. It is true that the plaintiff, it would seem unnecessarily, specifies that the petitioning defendants did certain acts, etc., and that defendant Tucker “was particeps in said last-mentioned breach by having sanctioned, approved and actively aided in said breach.” We are not quite sure that we correctly understand this portion of the complaint. If it is correctly construed by defendants’ counsel, we concur with him that the defendants cannot be joined. It would seem that the plaintiff seeks to charge defendants Bexford with breaking their contract, and defendant Tucker with actively aiding them in doing so. It is clear that these causes of action are in every respect separate and distinct. One is for breach of contract, the other for a tort. However this may be, eliminating this portion of the complaint, there is left a cause of action against all the defendants for a joint breach of the contract. The authorities are cited in Hough v. Railroad, 144 N. C., 692, and Tobacco Co. v. Tobacco Co., supra. The suggestion that the contract set out is void by reason of the statute of frauds is not open to defendants on the motion for removal. We do not understand that his Honor passed upon the allegation of fraudulent joinder of the defendant to prevent the removal, nor do we do so. As we construe the decisions, this is a matter for the Federal Court. In no event would our finding be binding upon that court. Wicker v. Enameling Co., 204 U. S., 176. It does not follow that we are compelled to take the charge as true. Our ruling is confined to the facts as they appear in the complaint.

Beversed.

---

Dissenting Opinion

BbowN, L,

dissented, on the ground that he was of opinion, that no cause of action is set out against defendant J. H. Tucker, and that the cause of action is separable.