# Perry v. . Swanner

> Supreme Court of North Carolina · February 17, 1909 · 150 N.C. 141

URL: https://www.frixlaw.com/law-library/cases/3643190

## Case

- **Full name:** D. L. PERRY Et Al., v. JOSHUA SWANNER and Wife
- **Court:** Supreme Court of North Carolina
- **Decided:** February 17, 1909
- **Citations:** 150 N.C. 141; 63 S.E. 611; 1909 N.C. LEXIS 9
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Brown
- **Judges:** Brown
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3643190

## Opinion text

Brown, J.
It. is contended that a defect in parties can be taken advantage of only by demurrer, and that the objection comes too late at the close of plaintiff’s evidence.
It is not a question of parties, as we understand the matter, that is raised by the motion to nonsuit, but a question as to whether or not the plaintiff has made out a cause of action upon which be personally can recover. There is only one plaintiff to this action, and the fact that be sues to the use of a number of others who furnished material to defendants for the construction of* the bouse does not necessarily make them parties, so as to be bound by a final judgment.
The plaintiff does not allege that be is trustee of an express trust, and bad be alleged it be does not offer any proof to sustain it. Clark’s Code, sec. 179.
Mere authority to collect the debts due the material men would not constitute the plaintiff a trustee of an express trust, within the meaning of the statute, so as to authorize him to maintain a suit in bis own name on behalf of bis
cestuis que trust. Abrams v. Qureton,
74 N. C., 523 ;
Battle v. Davis,
66 N. C., 252 . Tbe plaintiff testified that be furnished to defendants written statements of the sums due to the material men, in* accordance with the statute (Revisal, secs. 2021, 2022, 2023). When that statute is complied with,' a direct obligation upon the part of the owner to the material man may be created, upon which the latter may sue in bis own name.
Tbe judgment of nonsuit is
Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3643190. Public record. Not legal advice.