Justice v. . Sherard

Supreme Court of North Carolina

Justice v. . Sherard

148 S.E. 241, 197 N.C. 237, 1929 N.C. LEXIS 201

CourtSupreme Court of North Carolina

DecidedMay 22, 1929

StatusPublished

Cited by12 cases

This text of 148 S.E. 241 (Justice v. . Sherard) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Justice v. . Sherard, 148 S.E. 241, 197 N.C. 237, 1929 N.C. LEXIS 201 (N.C. 1929).

Pincite

Opinion

Clarkson, J.

In Pittsburgh Plate Glass Co. v. Hotel Corporation et al., ante, at p. 12, the following. principle is laid down and now reiterated: “A demurrer goes to the heart of a pleading and challenges the right of the pleader to maintain bis position in any view of the matter, admitting, for the purpose, the truth of the allegations of fact contained therein,” citing authorities.

In Brick Co. v. Gentry, 191 N. C., at p. 642, it is said: “A demurrer can be sustained, and it is only appropriate, when tbe defect or objection appears on tbe face of tbe pleading, as it is not tbe province of a demurrer to state objections not apparent on tbe face of the pleading to *240 which it is directed. A ‘speaking demurrer/ as styled by the books, is one which invokes the aid of a fact, not appearing on the face of the complaint, in order to sustain itself, and is condemned, both by the common law and the Code system of pleading,” citing authorities.

On demurrer we cannot anticipate what the answer will set forth and the law arising on all the facts relevant to the issues; we look only to the language and allegations of the complaint. On the present record a cause of action is alleged.

In Poole v. Lewis, 75 N. C., at p. 423, it is said: “If a vendor sells goods to a firm, and chooses to take the obligation of the purchasing parties, and waives his right to hold the firm liable, he may do so. But in such case it is necessary for the firm to prove that the vendor knew that the party was a member of the firm, and elected to give credit to the purchasing parties alone — in other words, to take the less instead of the greater security to which he was entitled.” Thornton v. Lambeth, 103 N. C., 86; see Supply Co. v. Windley, 176 N. C., 18.

20 R. C. L., at p. 941 (Partnership), sec. 161, in part, is as follows: “Where a note or bond of one of the partners is taken for an antecedent partnership debt, it may be considered either as payment and extinguishment of such debt, or only as collateral security, according to the nature of the transaction and circumstances attending it.” See 20 R. O. L., p. 859, see. 66.

The defendants present in their demurrer and brief questions that we do not now consider. The judgment of the court below is

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Clarkson, J.

In Pittsburgh Plate Glass Co. v. Hotel Corporation et al., ante, at p. 12, the following. principle is laid down and now reiterated: “A demurrer goes to the heart of a pleading and challenges the right of the pleader to maintain bis position in any view of the matter, admitting, for the purpose, the truth of the allegations of fact contained therein,” citing authorities.

In Brick Co. v. Gentry, 191 N. C., at p. 642, it is said: “A demurrer can be sustained, and it is only appropriate, when tbe defect or objection appears on tbe face of tbe pleading, as it is not tbe province of a demurrer to state objections not apparent on tbe face of the pleading to *240 which it is directed. A ‘speaking demurrer/ as styled by the books, is one which invokes the aid of a fact, not appearing on the face of the complaint, in order to sustain itself, and is condemned, both by the common law and the Code system of pleading,” citing authorities.

On demurrer we cannot anticipate what the answer will set forth and the law arising on all the facts relevant to the issues; we look only to the language and allegations of the complaint. On the present record a cause of action is alleged.

In Poole v. Lewis, 75 N. C., at p. 423, it is said: “If a vendor sells goods to a firm, and chooses to take the obligation of the purchasing parties, and waives his right to hold the firm liable, he may do so. But in such case it is necessary for the firm to prove that the vendor knew that the party was a member of the firm, and elected to give credit to the purchasing parties alone — in other words, to take the less instead of the greater security to which he was entitled.” Thornton v. Lambeth, 103 N. C., 86; see Supply Co. v. Windley, 176 N. C., 18.

20 R. C. L., at p. 941 (Partnership), sec. 161, in part, is as follows: “Where a note or bond of one of the partners is taken for an antecedent partnership debt, it may be considered either as payment and extinguishment of such debt, or only as collateral security, according to the nature of the transaction and circumstances attending it.” See 20 R. O. L., p. 859, see. 66.

The defendants present in their demurrer and brief questions that we do not now consider. The judgment of the court below is

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

148 S.E. 241, 197 N.C. 237, 1929 N.C. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/justice-v-sherard-nc-1929.

Opinion

Related

Cite This Page — Counsel Stack