Jenkins v. Fields

83 S.E.2d 908 (1954)

240 N.C. 776

James H. JENKINS, Administrator of the Estate of Edwin G. Johnson, Deceased, v. John Everett Fairbanks FIELDS, Norfolk Tallow Company, Inc., and Greenville By-Products Company, Inc.

No. 164.

Supreme Court of North Carolina.

October 20, 1954.

*910 Jones, Jones & Jones, Ahoskie, and John R. Jenkins, Jr., Aulander, by John R. Jenkins, Jr., Aulander, for plaintiff, appellant.

Bertram S. Nusbaum, Norfolk, Va., and Alvin J. Eley, Ahoskie, for defendants, appellees.

PARKER, Justice.

A completed compromise and settlement fairly made between persons legally competent to contract and having the authority to do so with respect to the subject matter of the compromise, and supported by sufficient consideration, operates as a merger of, and bars all right to recover on, the claim or right of action included therein, as would a judgment duly entered in an action between said persons. Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805; Hinson v. Davis, 220 N.C. 380, 17 S.E.2d 348; Armstrong v. Polakavetz, 191 N.C. 731, 133 S.E. 16; Sutton v. Robeson, 31 N.C. 380; 11 Am.Jur., Compromise and Settlement, Sec. 23.

Perhaps the earliest compromise recorded was when Abram and Lot settled the strike between them over grazing lands for their cattle. Genesis, Ch. 13, Verses 8 and 9. The law looks with favor on litigants *911 compromising and settling their differences. Armstrong v. Polakavetz, supra.

When the defendants alleged new matter in Paragraphs Five, Six, Seven and Eight of their answers by way of affirmative defense as bars to plaintiff's action, the plaintiff had the right to test the sufficiency of the pleas, either by demurrer or motion to strike. Williams v. Union County Hospital Ass'n, 234 N.C. 536, 67 S.E.2d 662; Smith v. Smith, 225 N.C. 189, 34 S.E.2d 148, 160 A.L.R. 460. A motion to strike out new matter in an answer because it alleges no valid defense will be treated as a demurrer ore tenus. American Nat. Bank v. Hill, 169 N.C. 235, 85 S.E. 209.

"The plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute * * * defense; and he may demur to one or more of such defenses * * *, and reply to the residue." G.S. § 1-141; Williams v. Union County Hospital Ass'n, supra. Failure to state a cause of action, or want of jurisdiction over the subject matter of the action, is not waived by pleading to the merits, and those points can be made at any stage of a case. Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43.

Paragraphs Five, Six and Eight of the defendants' answers cannot be stricken out on motion, nor be overthrown by demurrer, if the paragraphs allege any fact, or combination of facts, which, if true, entitles defendants to some relief. Wiscassett Mills Co. v. Shaw, 233 N.C. 71, 62 S.E.2d 487; Fairbanks, Morse & Co. v. J. A. Murdock Co., 207 N.C. 348, 177 S.E. 122.

Paragraph Five of the defendant Fields' answer alleges: that he "paid the sum of $2,000.00 and agreed to pay the further sum of $500.00 each year for three years in settlement for damages." Paragraph Five of the answer of the defendant Greenville By-Products Co., Inc., alleges, upon information and belief: that the defendant Fields "paid or agreed to pay the sum of $3,500.00 in settlement for damages." These paragraphs do not allege that the sum of $3,500.00 has in fact been paid by Fields to plaintiff. According to the defendants' allegations the plaintiff is still entitled to recover $1,500.00 from Fields, as no part of this amount is alleged to have been paid him. See Dobias v. White, 239 N.C. 409, 80 S.E.2d 23. Therefore, the trial judge was correct in refusing to strike out Paragraphs Five, Six and Eight of the further answer and defense in each case, and in overruling the demurrers to said paragraphs in each case.

Whether the alleged pleas in bar would be valid, if the defendants in addition to the facts alleged, had alleged the actual payment to plaintiff of the sum of $3,500.00, is a moot question not before us for decision, and on this we express no opinion. "The uniform rule adopted by this court is to the general effect that such questions will not be considered." Glenn v. Culbreth, 197 N.C. 675, 150 S.E. 332, 333.

The plaintiff contends in his brief that Hester v. Horton Motor Lines, 219 N.C. 743, 14 S.E.2d 794 is "on all fours with the present cases." The joint answer of the Motor Lines and Helms alleges: that when Coleman was given the suspended sentence "that the mother of the intestate, Mildred Hester, the plaintiff herein, in open court expressly acquiesced and consented to said judgment, and defendants aver that said judgment determines the rights of the plaintiff herein; that any amount which she might have recovered as a result of the death of her daughter has been adjudicated, ordered paid, and has been paid and accepted by the plaintiff herein; and these defendants plead that plaintiff is estopped thereby * * *." The defendant Coleman in his answer alleged the same facts as an estoppel. The allegations of the defendants in the present cases are quite different.

The rulings of the lower court are

Affirmed.