58 S.E. 603 | N.C. | 1907
The plaintiff alleged in his complaint that the defendant owned a large tract of land in said county and employed him to log the same at $3 per 1,000 feet, there being 150,000,000 feet of timber on the land at the time. In order to cut and deliver the timber as required by the contract, it was necessary to lay a tramway, part of which was constructed by the plaintiff and the other part by the defendant, the plaintiff having agreed to furnish trucks and certain other equipment and supplies for carrying on the work, which he did, and the defendant having agreed to furnish other equipment and materials necessary for the said purpose, which it failed to do; that the defendant in other respects refused to perform its contract. While the plaintiff was engaged in the performance of his part of the contract, the defendant unlawfully seized and took possession of the tramway and converted to its own use certain property which the plaintiff had furnished and placed on the premises for the purpose of doing the work required of him by the contract, and thereby prevented him from performing the same. He prays judgment for $100,000 for the breach of the contract, for $3,470 for seizing the tramway, which was built by the plaintiff at his own expense, and for $2,174 for the conversion of the personal property, making in all $105,644. The defendant demurred for misjoinder, because the plaintiff had united a cause of action for unliquidated damages, (49) which arose out of a contract, with one for the conversion of personal property, which arose out of a tort. The demurrer was overruled, and the defendant appealed.
After stating the case: It is true, as argued by the learned counsel for the defendant, that at common law the causes of action stated in the complaint could not have been joined. 23 Cyc., 392; Logan v. Wallis,
We think the causes of action were properly joined in this case, and that the court was right in overruling the demurrer and requiring the defendant to answer. In Hamlin v. Tucker,
We conclude that the ruling of the court was right. The defendant will be allowed to answer.
Affirmed.
Cited: S. c.,