Guerry v. American Trust Co.

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68 S.E.2d 272 (1951)

234 N.C. 644


No. 521.

Supreme Court of North Carolina.

December 12, 1951.

*273 B. Irvin Boyle, Charlotte, for defendant appellant.

Lassiter, Moore & Van Allen, Charlotte, for plaintiff appellee.

*274 VALENTINE, Justice.

Was the court below correct in sustaining the plaintiff's general demurrer to the defendant's entire answer? This is the only question for decision upon this appeal.

It is settled that the sufficiency of an answer may be challenged and tested by a demurrer. McIntosh, page 507, sec. 475; Williams v. Union County Hospital Association, N.C., 67 S.E.2d 662. A demurrer admits the truth of all the allegations of fact contained in the pleading as well as all relevant inferences of fact reasonably deducible therefrom. Commerce Insurance Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, and cases there cited. Both the statute, G.S. ยง 1-151, and the decisions of this Court on the subject are to the effect that a pleading as against a demurrer must be liberally construed in favor of the pleader. Facts alleged in an answer, although inartfully drawn, are sufficient to withstand a demurrer, if upon a liberal construction thereof the pleading is sufficient to present one or more defenses. Pridgen v. Pridgen, 190 N.C. 102, 129 S.E. 419; Dixon v. Green, 178 N.C. 205, 100 S.E. 262; Farrell v. Thomas & Howard Co., 204 N.C. 631, 169 S.E. 224; King v. Motley, 233 N.C. 42, 62 S.E.2d 540.

A pleading must be fatally and wholly defective before it will be rejected as insufficient. If the answer contains facts sufficient to constitute one or more defenses in any part or to any extent or if facts sufficient for that purpose can be fairly gathered from it, it is not demurrable, regardless of how uncertain or inartfully drawn it appears, or how defective or redundant its statements may be. Every reasonable intendment and presumption must be made in favor of the pleader. Fairbanks, Morse & Co. v. J. A. Murdock Co., 207 N.C. 348, 177 S.E. 122; Vincent v. Powell, 215 N.C. 336, 1 S.E.2d 826; Commerce Insurance Co. v. McCraw, supra; Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835; Dickensheets v. Taylor, 223 N.C. 570, 27 S.E.2d 618; Salisbury Morris Plan Co. v. McCanless, 193 N.C. 200, 136 S.E. 371; Steele v. Locke Cotton Mills, 231 N.C. 636, 58 S.E.2d 620; Bryant v. Little River Ice Co., 233 N.C. 266, 63 S.E.2d 547.

The defendant sets up as defenses that sometime during the year 1946 Hood Motor Company, Inc., the subtenant then in possession of the premises, notified and called upon Dr. LeGrand Guerry, the owner and lessor of the premises, to make certain repairs to the building, and pursuant thereto Dr. Guerry procured the repairs and paid for the same; that after the death of Dr. Guerry the said Motor Company in the years 1948 and 1949 notified and called upon the executor of the estate of Dr. Guerry for further repairs to the leased building and on both occasions the plaintiff caused the said repairs to be made and paid for the same; that the defendant was never notified either by Dr. Guerry or his executor or anyone else that repairs were necessary to the said premises; that neither Dr. Guerry nor his executor required the Motor Company to make the repairs although they knew at all times that the said Motor Company was in possession of the premises under a sublease of the defendant; that the failure of such notice to the defendant prevented him from ascertaining whether repairs were necessary, and, if so, whether such repairs were required of him under the terms of his lease and further prevented him from requiring the Hood Motor Company to make said repairs as required of it under the sublease. Upon these facts, the defendant contends that he had no chance to ascertain whether the repairs to the building were necessary and whether they were included in or excluded from the covenant to repair contained in his lease. He further contends that Dr. Guerry and his executor had full knowledge of all the facts and circumstances surrounding the entire transaction and that the repairs were voluntarily made and paid for by Dr. Guerry and his executor and that the defendant is therefore not liable for the costs of said repairs or any part thereof.

Defendant's allegation that the plaintiff and his testator were volunteers in making and paying for the repairs brings them within the well established rule of law that the voluntary payment of money by a person who has full knowledge of all the facts can not be recovered. Board of Commissioners of Macon County v. Board *275 of Commissioners of Jackson County, 75 N.C. 240; Commissioners of Catawba County v. Setzer, 70 N.C. 426; Brummitt v. McGuire, 107 N.C. 351, 12 S.E. 191. To the same effect is Bank v. Taylor, 122 N.C. 569, 29 S.E. 831; Bernhardt v. Carolina & N. W. R. R., 135 N.C. 258, 47 S.E. 427; Williams v. McLean, 220 N.C. 504, 17 S.E.2d 644.

A waiver is sometimes defined to be an intentional relinquishment of a known right. The act must be voluntary and must indicate an intention or election to dispense with something of value or to forego some advantage which the party waiving it might at his option have insisted upon. The waiver of an agreement or of a stipulation or condition in a contract may be expressed or may arise from the acts and conduct of the party which would naturally and properly give rise to an inference that the party intended to waive the agreement. Where a person with full knowledge of all the essential facts dispenses with the performance of something which he has the right to exact, he therefore waives his rights to later insist upon a performance. A person may expressly dispense with the right by a declaration to that effect, or he may do so with the same result by conduct which naturally and justly leads the other party to believe that he has so dispensed with the right. Alexander v. N.C. Saving Bank & Trust Co., 155 N.C. 124, 71 S.E. 69; Wilmington Furniture Co. v. Cole, 207 N.C. 840, 178 S.E. 579.

Neither the plaintiff nor his testator were under legal or contractual obligation to make the repairs. They had the right to demand that the tenant comply with his contract in this respect and make the necessary repairs. They knew that the original tenant was not in possession and that he, therefore, would have no knowledge of the necessity for repairs. There was no demand upon or refusal by the defendant to perform the covenant to repair. Hence, the voluntary acts of plaintiff and his testator in making the repairs and paying for the same without notice to or demand upon the tenant constitute a waiver in the nature of an estoppel. Clement v. Clement, 230 N.C. 636, 55 S.E.2d 459.

Substantial justice between the parties is the point always in view in the construction of pleadings. Kemp v. Funderburk, 224 N.C. 353, 30 S.E.2d 155. Measuring the facts set up in defendant's answer by the applicable rules of law, it would appear that the defendant's answer is sufficient to repel plaintiff's demurrer. It follows, therefore, that his Honor was in error in sustaining plaintiff's demurrer, and we so hold.


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