Guy v. Baer

Annotate this Case

67 S.E.2d 47 (1951)

234 N.C. 276

GUY et al. v. BAER et al.

No. 238.

Supreme Court of North Carolina.

October 17, 1951.

*48 I. R. Williams, Dunn, and Neill McK. Salmon, Lillington, for plaintiff appellants.

Smith, Leach & Anderson, James K. Dorsett, Jr., all of Raleigh, and Wilson & Johnson, Lillington, for defendant appellees.

*49 BARNHILL, Justice.

The complaint must contain a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation must be distinctly numbered. G.S. ยง 1-122.

The function of a complaint is not the narration of the evidence but the statement of the substantive and constituent facts upon which the plaintiffs' claim to relief is founded. Winders v. Hill, 141 N.C. 694, 54 S.E. 440; Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412. Hence, "the facts constituting a cause of action" required by the statute are the material, essential, and ultimate facts which constitute the cause of actionbut not the evidence to prove them. With few exceptions only the facts to which the pertinent legal or equitable principles of law are to be applied are to be stated in the complaint. Chason v. Marley, 223 N.C. 738, 28 S.E.2d 223, and cases cited; Long v. Love, 230 N.C. 535, 53 S.E.2d 661.

When a good cause of action is thus stated, evidence of the facts alleged, including every material detail, fact, and circumstance tending to establish the ultimate and issuable facts, is admissible. But it does not follow that it is either necessary or proper to allege any and every fact, evidence of which will be competent at the hearing. Chason v. Marley, supra.

Observance of these rules in drafting a complaint is essential to good pleading and a well prepared complaint is most helpful both to the court and the jury. However, they are all too often honored in the breach. The defendants here assert, with some justification, that the complaint contains allegations of evidentiary, probative facts not essential to a statement of plaintiffs' alleged causes of action and which tend only to confuse.

The allegations contained in paragraphs 5, 6, and 7 of the first cause of action were properly stricken. They merely relate facts and circumstances which induced defendant Owen to approach plaintiffs and solicit them to execute the contracts in question. What happened after Owen contacted plaintiffs is the essential question. The other is merely unnecessary window dressing.

We do not, however, concur in the view of the court below that the latter part of paragraph 10 should be stricken. Here the plaintiffs allege the purpose and intent of the delivery in escrow. Upon these facts the plaintiffs, in part, base their first cause of action. Nor was it proper to strike subsection (c) and the last paragraph of allegation number 12.

Allegation that defendants altered the contracts after they were delivered in escrow and before the terms of the conditional delivery were fulfilled, without the consent of the plaintiffs, constitutes the foundation stone upon which their right to relief must be made to rest.

The attempt to repeat in the statement of the second cause of action what is alleged in paragraphs 5, 6, and 7 of the first cause of action merely by referring to said paragraphs by number is violative of Rule 20(2), Rules of Practice, 221 N.C. 557. Furthermore, these allegations are not essential to a statement of plaintiffs' second cause of action. The reference was properly stricken.

In that part of the complaint labeled "Second Cause of Action" the plaintiffs allege a separate and distinct cause of action for fraud in the procurement of the execution by them of the contracts in question. Defendants' exception to the refusal of the court to strike the same is without substantial merit. In this connection, however, we may note that the allegations in paragraphs 5 and 6 in the second cause of action have no real relation to the cause of action therein stated. They more properly relate to the first cause of action and in that respect are largely repetitious.

A complete reformation of the pleadings would not be ill advised.

Let the costs be equally divided between plaintiffs and defendants.

On plaintiffs' appeal: Modified and affirmed.

On defendants' appeal: Affirmed.

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