#### H. D. BAKER v. CARR LUMBER COMPANY.

(Filed 24 May, 1922.)

1. Appeal and Error — Parties—Nonsuit—Partnership—Fragmentary Appeal.

Where the Superior Court judge has ruled upon the trial of the case that certain other parties were necessary for the prosecution of the action on the ground that they had an interest in the subject-matter as partners, and that the cause could not proceed without them, the ruling strikes to the foundation of the plaintiff’s cause of action, and he may take a voluntary nonsuit and appeal without valid objection that his appeal should be dismissed as fragmentary.

3. Same — Railroads—Timber—Right of Way — Contracts—Cutting and Delivering Timber.

The defendant railway company obtained a right of way through plaintiff’s timbered lands, inaccessible to railway transportation, upon part consideration that the defendant would build the road and transport the *578plaintiff’s timber at a certain price per carload. Tbe defendant commenced to build tbe road and notified tbe plaintiff to baye bis timber bauled to tbe right of way, and tbe plaintiff then contracted with another to do the cutting and hauling upon consideration of advancements, and a certain part of the proceeds of the sale of the timber, without assigning any of his rights under the contract he had made with tbe defendant railroad company: Held, error for tbe trial judge to hold that tbe contractor for the cutting and hauling the timber was a partner in the contract sued on, and this ruling striking to tbe root of tbe plaintiff’s alleged cause, be was within bis right in taking a voluntary nonsuit and appealing from tbe ruling of tbe trial court.

Appeal by plaintiff from McElroy, J., at December Term, 1921, of BUNCOMBE.

Tbis is an action brought to recover damages for a breach of contract. The parties do not differ materially as to the terms of the two contracts involved; and, therefore, the following statement of the material facts will suffice to present fully the point raised by the exception: “On or about 1 October, 1919, plaintiff entered into a contract with the defendant, whereby he agreed to sell defendant a right of way for its railroad through plaintiff’s land in Henderson County for the sum of $100 cash and the further consideration that defendant .would furnish plaintiff sufficient cars for -loading and transporting all his lumber and wood located on said tract of land from any point on said railroad where it passed through plaintiff’s land to the junction point of defendant’s said railroad with the line of the Southern Railway Company, and to transport said cars of lumber and wood from said points on said land tó said junction point of said Southern Railway Company at the price of $10 for each car so transported.” The plaintiff complied with his part of the contract, and defendant commenced grading its right of way through plaintiff’s land in October, 1919, and at that time defendant notified plaintiff to cut and place his wood and lumber along the right of way, and that the railroad would be in operation and sufficient cars would be furnished plaintiff for loading and transporting his wood and timber by 1 June, 1920. The construction work was abandoned by defendant in the spring of 1920, “and they have done nothing since about laying down the rails.” On 2 February, 1920, plaintiff entered into a contract with E. Penland and B. Penland, under which the Penlands were to cut, haul, and deliver to the siding of the railroad all timber, wood, etc., and as compensation were “to have one-half of all proceeds from wood, cross-ties, tan bark, acid wood, dogwood, and hickory.” The contract also provided that plaintiff should make certain advancements in money to the Penlands, and that plaintiff should be reimbursed out of their part of the proceeds from sales. The plaintiff built a house and advanced about $800 to the Penlands, and- a large amount of wood and *579timber was cut, hauled, and stacked on defendant’s right of way, and the Penlands continued to comply with their contract with plaintiff until it was definitely learned that the railroad would not be built. The wood and timber that was cut and placed at the railroad right of way, and that cut and .left in the woods, and the wood still standing, was of little value without a railroad, on account of the cost of transporting and the lack of means of transportation, and plaintiff was thereby greatly damaged.

At the close of all the evidence the court held that E. Penland and B. Penland were partners with plaintiff in the logging contract, and that the Penlands were necessary and indispensable parties in the pending case, involving a breach of another and distinct contract between plaintiff and defendant, “and that in no view of the case could plaintiff recover as an individual, and that the court would charge the jury to that effect. The plaintiff never transferred or assigned any interest in the contract with defendant to either of the Penlands, and there was no evidence that the Penlands ever had any connection with or interest in the contract involved in this action.

Upon the intimation of its opinion by the court, as above set forth, and in deference thereto, and reserving its exception, the plaintiff submitted to a nonsuit and appealed.

W. G. Fortime and Marie W. Brown for plaintiff.

Martin, Rollins & Wright for defendant.

Walkek, J.

The plaintiff was not bound to submit absolutely to the judge’s ruling, but could except thereto and take a nonsuit, as he did, for he could not have recovered, under the judge’s view of the case. It is not a ease, therefore, wherein there is ground left upon which plaintiff might have succeeded in his action, the judge’s ruling having “cut úp his case by the roots.” The procedure he adopted was the only one to which he could safely resort and save his rights.

It appears in this case that the two contracts, the one with the defendant and the other with the Penlands, were made at different times, the former having been made on 1 October, 1919, and the latter on 2 February, 1920. On their face they have no legal connection with each other. The contract with the defendant was made for the plaintiff’s benefit, and not for that of the Penlands, the contract with them not being in existence at the time the other contract of 1 October, 1919, was made, and there has been no assignment of any interest in the contract by the plaintiff to the Penlands. Even if it be true that the contract of February, 1920, created a partnership between plaintiff and the Penlands, it related only to the particular transactions referred to in the contract. *580It is very certain that tbe defendant Carr Lumber Company did not enter into any sucb contract, and was not a party thereto, as its contract witb tbe plaintiff related to a separate and distinct matter, and tbe principles of law applicable to tbe two contracts are not tbe same, nor is tbe same rule of damages applicable to both. Tbe Penlands cannot sue on tbe contract witb tbe lumber company, for it bas made no contract witb them. They are not parties or privies to it, nor bas tbe contract, or any part of it, been assigned to them, nor was it made for tbeir benefit. If there bas been a breach of it, tbe damages would go to tbe plaintiff. Tbe action, therefore, must be confined to tbe parties named in tbe contract (Whitehead v. Reddick, 34 N. C., 95; Hardy v. Williams, 31 N. C., 177), not only because they are tbe only parties named therein, but because they are also tbe real parties in interest. We cannot change a contract, so as to give another a right or interest in tbe contract, which it does not confer, but must enforce it as we find it to be, and as tbe parties have made it in tbeir agreement. Norment v. Johnston, 32 N. C., 89. Referring to that case, Judge Battle said in Joyner v. Pool, 49 N. C., 293, at p. 295 : “Tbe ease of Norment v. Johnston, 32 N. C., 89, which is tbe only authority referred to and relied upon by tbe counsel for tbe plaintiffs, does not, in our estimation, aid tbeir case. Tbe principle therein decided was that one partner could not by a contract witb another person charge what was known to be bis individual debt to that person, upon tbe firm, without tbe consent of tbe other members of tbe firm. Surely that does not prove that an individual party to a contract' can convert that contract into one with a firm, without tbe consent, and to tbe prejudice, of tbe other party.” A contract is made only by consent or agreement of tbe parties to it (Norment v. Johnston, supra), and there is nothing here to take this case out of tbe rule. “There can be no contract in tbe true sense, that is, as distinguished from quasi or constructive contracts, in tbe absence of tbe element of agreement, or mutual assent of tbe parties. This, above all others, perhaps, is an essential element of every contract.” 9 Cyc., 245. Tbe two contracts are therefore separate and distinct, not having tbe same parties or tbe same subject-matter. Tbe opinion expressed by tbe court was not well founded, and was an erroneous view of tbe case.

Tbe nonsuit is set aside, and a new trial ordered.

New trial.