Breece v. Standard Oil Co.

211 N.C. 211

Opinion

ClarksoN, J.

This cause has heretofore been before this Court, Breece v. Oil Co., 209 N. C., 527. At p. 530 we said: “The allegations in plaintiff’s reply setting forth the fraud is well pleaded. Whether on a trial it can be substantiated is another question.”

We do not think that on the trial the plaintiff’s plea of actionable fraud or deceit can be sustained. Plaintiff could read and write, was an intelligent man, had been in business for 55 years, was formerly a school teacher, has served as United States Commissioner for 12 years, and now holds said office. There was no trick or connivance to prevent him from reading the receipt which he signed. Colt v. Kimball, 190 N. C., 169; Dorrity v. Building & Loan Assn., 204 N. C., 698. Allegation without proof is as unavailing as proof without allegation.

The judgment of the court below is

Affirmed.