Commerce Insurance v. McCraw

215 N.C. 105

• Court: Supreme Court of North Carolina
• Decided: March 1, 1939
• Status: Published

Opinion

WinborNE, J".

We are of opinion and bold tbat tbe demurrer ore terms was properly overruled.

“As to matters set up as defense tbe usual ground of demurrer is its insufficiency, and tbis may be taken by a formal demurrer or demurrer ore terms’’ McIntosh, N. C. Prac. & Proc., 501, sec. 415.

“Tbe office of demurrer is to test tbe sufficiency of a pleading, admitting for tbe purpose, tbe truth of tbe allegations of tbe facts 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; Andrews v. Oil Co., 204 N. C., 268, 168 S. E., 228; Toler v. French, 213 N. C., 360, 196 S. E., 32; Pearce v. Privette, 213 N. C., 501, 196 S. E., 843.

Both the statute and decisions of tbis Court require tbat tbe answer be liberally construed, and every reasonable intendment and presumption must be in favor of tbe pleader. It must be fatally defective before it will be rejected as insufficient. C. S., 535. Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874; Brewer v. Wynne, 154 N. C., 467, 70 S. E., 947; Public Service Co. v. Power Co., 179 N. C., 18, 101 S. E., 593; Anthony v. Knight, 211 N. C., 637, 191 S. E., 323; Toler v. French, supra; Pearce v. Privette, supra.

Whether a stranger to a note, who takes it up, buys it or extinguishes it, depends, ordinarily, on tbe circumstances surrounding tbe transaction. Wilcoxon v. Logan, 91 N. C., 449.

Applying these principles, and under liberal interpretation, tbe allegations of tbe answer and further defense sufficiently raise issues of fact.

Tbe judgment below, which counsel for plaintiff state was prepared by them, taxes plaintiff with tbe costs of tbe action. In tbis there is error.

Tbe judgment below is

Modified and affirmed.