260 N.C. 537 | N.C. | 1963
This is .an -action for the .eomversiom of personal property -alleged to belong solely to- the plaintiff and not -an action for the wrongful -repossession -of the leased premises. Therefore, Jacob Williams is- the only necessary and proper p-arty plaintiff.
Plaintiff is not -an assignee of the lease -contract between J. No-ah Williams land the defendant. Had he installed the equipment in the building as assignee, he would then 'have -stood in the shoes of the original lessee, J. Noah Williams, whose rights to remove equipment at the end of the term were defined by the lease. Sanders v. Ellington, 77 N.C. 255; Springs v. Refining Co., 205 N.C. 444, 171 S.E. 635. Nevertheless, lany -equipment plaintiff put into- the 'building must have been put there pursuant to authority or license from J. Noah Williams. A fortiori, under the facts of this case, plaintiff .can at no time have any greater nights -w-ith respect to- the fixtures and equipment than w-ould have been tavailabia to the lessee of the premises.
The lease specifically prohibits J. No-aih Williams from removing any equipment which has been .attached to -any portion -of the building. Prima facie, tw-o seven -and one-half ton refrigerator compressors, one hot water heater system, and one .smoke rnak-er would be -attached to the building. The either items alleged to have 'been converted are not described in the complaint w-iitih that degree of -certainty which is required in -an action for conversion. “. . . (G)oods claimed to- -have been converted should be described wi'th convenient certainty -in ord-er that the jury may know what is -meant -and in order that the defendant may be protected from -another action -biased upon the same cause of action.” Norman v. Rose Lake Lumber Co., 22 Idaho 711, 128 Pac. 85; 53 Am. Jur., Trover and Conversion, § 167.
“In an action of trover, -the declaration, petition, or complaint -must describe the property converted, otherwise it will -be fatally defective.” 65 C.J., Trover and Conversion, § 123; 89 C.J.S. § 97.
It may be that plaintiff has a cause of action against the defendant for the -conversion of some personal property. If so, on a proper complaint, he may still -have his d-ay in court. The -complaint in this case
The judgment sustaining the demurrer is
Affirmed.
