Carroll v. . Brown

46 S.E.2d 715, 228 N.C. 636, 1948 N.C. LEXIS 292

• Court: Supreme Court of North Carolina
• Decided: March 24, 1948
• Status: Published

Opinion

DeNNy, J.

The only question involved on this ‘appeal is: Was the plaintiff entitled to judgment on the pleadings ?

Tbe allegation of tbe plaintiff to tbe effect that tbe note upon which be bottoms bis action, draws interest from date until paid at the rate of six per cent per annum, is denied by tbe defendants in their answer. Tbe note is not set out in tbe complaint, hence we think the pleadings raise a question of fact for tbe jury. Bessire & Co. v. Ward, 206 N. C., 858, 175 S. E., 208; Wilson v. Allsbrook, 203 N. C., 498, 166 S. E., 313.

Moreover, the defendants allege it was understood at tbe time this note was executed that it was to be paid out of partnership profits, from a partnership in which the plaintiff and one of the defendants, Arlie W. Brown, were then engaged. In the case of Ripple v. Stevenson, 223 N. C., 284, 25 S. E. (2d), 836, this Court said: “It is permissible for the parties to agree that a note shall be paid only in a certain manner, e.g., out of a particular fund, by the foreclosure of collateral, or from rents collected from a certain building, etc. Jones v. Casstevens, 222 N. C., 411. And this part of the agreement may be shown, though it rest in parol.”

The appellee contends that the general rule that one partner cannot sue another partner at law until there has been a complete settlement of the partnership affairs and a balance strupk applies in this case, citing Pugh v. Newbern, 193 N. C., 258, 136 S. E., 707. Therefore, he contends the cross-action for an accounting to ascertain whether or not the partnership has sufficient profits out of which the note may be paid cannot be maintained. The position is untenable. There are numerous exceptions to the general rule laid down in Pugh v. Newbern, supra, among them being where the partnership property has been wrongfully converted, and “where the partnership has been terminated, all debts paid and the partnership affairs otherwise adjusted with nothing remaining to be done but pay over the amount due by one to the other, such amount involving no complicated reckoning.”

Furthermore, it is not permissible to enter judgment on the pleadings against a party seeking affirmative relief when the allegations upon which the prayer for relief is based are denied. “Every fact necessary to be established as a basis for the judgment asked must be admitted either by failure to deny the specific allegations or by specific admission of the facts.” Oldham, v. Ross, 214 N. C., 696, 200 S. E., 393; Poole v. Scott, ante, 464, 46 S. E. (2d), 145. Here the defendants deny certain material allegations, interpose a defense, and seek affirmative relief.

The plaintiff’s motion for judgment on the pleadings should have been denied. Hence, the judgment below is

Reversed.