Belch v. Perry

84 S.E.2d 186 (1954)

240 N.C. 764

Mrs. Collie D. BELCH, A. T. Belch, Jr., and Perry Hughes, Trustees; and Mrs. Collie D. Belch, A. T. Belch, Jr., Elizabeth B. Hughes, Arline B. Morris, Carol Belch, Dorothy Belch, Donald Belch, and Lewis E. Belch, Individually, v. L. D. PERRY and J. A. Pritchett, Trustee.

No. 172.

Supreme Court of North Carolina.

October 20, 1954.

*189 Marvin P. Wilson, Edenton, John H. Hall, Elizabeth City, for plaintiffs appellants.

Pritchett & Cooke, Windsor, for defendants appellees.

WINBORNE, Justice.

Did the trial court err in sustaining the demurrer to the complaint for failure to state a cause of action? This is the sole question presented on this appeal.

In this connection, "The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted," Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763; Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452, and numerous other cases.

A complaint must contain a plain and concise statement of the facts constituting a cause of action, G.S. § 1-122. And "plaintiff may unite in the complaint several causes of action, of legal or equitable nature, or both, where they all arise out of * * * the same transaction, or transaction connected with the same subject of action. * * *" G.S. § 1-123.

Both the statute G.S. § 1-151 and decisions of this Court require that in the construction of a pleading for the purpose of determining its effect its allegations shall be construed with a view to substantial justice between the parties. Every reasonable intendment and presumption must be in favor of the pleader. Indeed, a pleading must be fatally defective before it will be rejected as insufficient. Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560, 11 S.E.2d 550; Dickensheets v. Taylor, 223 N.C. 570, 27 S.E.2d 618; King v. Motley, 233 N.C. 42, 62 S.E.2d 540; Clinard v. Lambeth, supra. See also Childress v. Abeles, N.C., 84 S.E.2d 176.

Applying these principles and statutory provisions in testing the sufficiency of the allegations of the complaint to with-stand the challenge of the demurrer filed in case in hand, it is apparent from a reading of the complaint that plaintiffs have undertaken to state three or more causes of action, no one of which is explicit in statement of facts on which it is based.

The first attempt is to state a cause of action against L. D. Perry in connection with plaintiffs' purchase of his interest in the partnership trading under the name of Perry-Belch Fishing Company, exclusive of its accounts receivable. And while it is alleged that for many years L. D. Perry had been in active and exclusive control of the books and records of the said partnership, and that A. T. Belch in his lifetime and plaintiffs after his death had relied upon reports made by L. D. Perry; and that plaintiffs now believe that upon an accounting L. D. Perry will be indebted to them in some large amount, it is not alleged that plaintiffs were induced to buy in reliance upon any misrepresentation made to them by Belch or that they were misled in any manner in making the purchase, that is, plaintiffs fail to allege wherein L. D. Perry is indebted to them in such large amount. But if relief is sought in respect to accounts receivable, it may be that the allegations, liberally interpreted in favor of the pleader, are sufficient bases for such relief, if they were separated from the other allegations of the complaint.

The second attempt to state a cause of action is against the partnership of the Chowan Packing Company in connection with sale by plaintiffs of their interest *190 therein, exclusive of accounts receivable, to one Leo Wynn, payment for which was made by L. D. Perry to whom the "instrument of sale" was made, and that upon an accounting the Chowan Packing Company owes plaintiffs the sum of $4,000, or some other large sum. In connection with these allegations, it is noted that Chowan Packing Company is not a party to this action, but if it were, there would be a misjoinder of both parties and causes of action,requiring that demurrer therefor be sustained and the action dismissed. Smith v. Greensboro Joint Stock Land Bank, 213 N.C. 343, 196 S.E. 481; Sellers v. Motors Ins. Corp., 233 N.C. 590, 65 S.E.2d 21.

The third attempt to state a cause of action is against L. D. Perry for damages for breach of an alleged agreement by him that he would not engage in the fish business in competition with plaintiffs. This would constitute a separate cause as basis for a separate action.

In the light of the state of the allegations of the complaint, this Court is constrained to sustain the ruling of the trial court, and to affirm the judgment from which appeal is taken.

Affirmed.