117 S.E. 165 | N.C. | 1923
Civil action to recover upon a quantum meruit for services rendered and for an accounting.
The defendant demurred upon the ground that there was a misjoinder, both of parties and of causes of action. Demurrer (313) overruled. Defendant excepted and appealed. The feme plaintiff alleges that in 1908 she was a ward of the Children's Home Society of North Carolina, Inc., — being only ten years old at that time — and that she was induced to go and live in the home of the defendant with the assurance that she, the feme plaintiff, would be adopted as a child of the defendant and thereby become entitled to receive, at the death of the defendant, a child's share of her estate. The plaintiff, relying upon this promise, changed her name, went into the home of the defendant and rendered every kind of service required of her by the defendant. She alleges that she cooked, washed dishes, milked the cow, nursed the defendant's husband in his sickness, attended to many of the chores about the house, worked in the cotton mill and in the cigar factory and turned over her wages to the defendant.
On 1 August, 1915, the feme plaintiff was married to Charles Shore, who also worked for the defendant for a period of eight months immediately thereafter. Plaintiff later learned that she had not been legally adopted by the defendant, and it is alleged that the defendant has now disavowed her intention to carry out her promise.
The feme plaintiff brings this action to recover upon a quantum meruit
for the value of the services rendered by her to the defendant under the promise of reward as above set out. For the right to maintain her action, she relies upon the line of cases of which the following are representative: Hayman v. Davis,
Charles Shore is joined as a coplaintiff with his wife; and, in the present suit, coupled with his wife's complaint, he has set up a separate and independent cause of action for services rendered by him and for an accounting for the eight months he was with the defendant.
The basis of the demurrer is that there is a misjoinder, both of parties and of causes of action. Where this occurs, it has been held with us that *330
the demurrer should be sustained and the action dismissed. Roberts v.Mfg. Co.,
When several causes of action have been improperly united, the Court may sustain the demurrer and permit the defect to be cured by amendment, or order a division, upon such terms as are just, under authority of C.S. 516.Gattis v. Kilgo,
True, in Lipinsky v. Revell,
While the demurrer should have been sustained for a misjoinder of the two causes of action, we are of opinion that the feme plaintiff's suit should not be dismissed.
In the present condition of the pleadings, we will remand the cause for further action along the lines suggested in this opinion; such procedure being permitted in the exercise of our discretion. Huggins v. Waters,
Let one-half the costs of this appeal be taxed against the plaintiffs and one-half against the defendant.
Remanded.
Cited: Evans v. Davis,
(315)