Chason v. . Marley

28 S.E.2d 223, 223 N.C. 738, 1943 N.C. LEXIS 183

• Court: Supreme Court of North Carolina
• Decided: December 15, 1943
• Status: Published

Opinion

BaeNhill, J.

The oft-repeated pertinent provision of C. S., 506, is: “The complaint must contain — (2) a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation must be distinctly numbered.”

This means that the material, essential, and ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff should allege all the material facts, the ultimate facts which-constitute the cause of action — but not the evidence to prove them. McIntosh P. & P., 389, sec. 379; Winders v. Hill, 141 N. C., 694, 54 S. E., 440; Sams v. Price, 119 N. C., 572, 26 S. E., 170; Penis v. Asheville, 207 N. C., 237, 176 S. E., 738.; Hosiery Mill v. Hosiery Mills, 198 N. C., 596, 152 S. E., 794. With few exceptions, only the facts to which the pertinent legal or equitable principles of law are to be applied are to be stated in the complaint. McIntosh P. & P., 388, sec. 379; Moore v. Hobbs, 79 N. C., 535; Webb v. Hicks, 116 N. C., 598, 21 S. E., 672; Lassiter v. Roper, 114 N. C., 17, 18 S. E., 946; Crump v. Mims, 64 N. C., 767; Insurance Co. v. Smathers, 211 N. C., 373, 190 S. E., 484; Woodley v. Combs, 210 N. C., 482, 187 S. E., 762; Poovey v. Hickory, 210 N. C., 630, 188 S. E., 78.

When a complaint is drawn in accord with, the statute and states a cause of action, evidence of the facts alleged is admissible. It does not follow that it is either necessary or proper to allege any and every fact evidence of which will be competent at the hearing.

Measured by these principles of law, we are constrained to hold that the complaint .contains many immaterial and redundant allegations which were properly stricken.

Apparently, the careful and painstaking judge below was inadvertent to the language in paragraph (6) which alleges that the checks listed constitute memoranda of the contract to convey. A written memorandum of the contract to convey, signed by the parties sought to be charged, is essential to plaintiff’s cause of action. Lewis v. Murray, 177 N. C., 17, 97 S. E., 750; Burriss v. Starr, 165 N. C., 657, 81 S. E., 929; Smith v. Joyce, 214 N. C., 602, 200 S. E., 431. He may allege such as one of the ultimate facts relied upon. This he undertakes to do. The allegation should not be stricken.

This was a motion to strike and not a demurrer. Hence the sufficiency of the instruments alleged in this paragraph as memoranda in writing is not challenged. That is a question to be decided at the hearing.

Paragraph (17) is an allegation of law and fact. In so far as it alleges that the plaintiff is ready, able, and willing to comply with his contract it is repetitious. From the striking of this paragraph plaintiff suffers no harm.

The answer of the defendants is of record. The admissions therein, as they may be explained by the allegations in the complaint, are still available to plaintiff. The order striking allegations in the complaint does not render such allegations incompetent as evidence in explanation of admissions made in the answer.

The.judgment below must be modified in accordance with this opinion.

Modified and affirmed.