Kemp v. . Funderburk

30 S.E.2d 155, 224 N.C. 353, 1944 N.C. LEXIS 362

• Court: Supreme Court of North Carolina
• Decided: May 24, 1944
• Status: Published

Opinion

DeNNY, J.

Does the complaint state, a cause of action bottomed on false and fraudulent representations, and, if so, should the attorney-referred to therein be made a party defendant?

In an action to reform an instrument based on false and fraudulent representation, the complaint must allege (1) that the representation was false; (2) that the person making the statement, or the person or persons responsible for it, knew it to be untrue or had a reckless disregard as to its truth or falsity; (3) the statement was intended to mislead the plaintiff and induce him to act upon it; and (4) that the plaintiff did rely on the statement and acted upon it and has been damaged thereby. Ward v. Heath, 222 N. C., 470, 24 S. E. (2d), 5; Stone v. Milling, Co., 192 N. C., 585, 135 S. E., 449; Evans v. Davis, 186 N. C., 41, 118 S. E., 845; Bell v. Harrison, 179 N. C., 190, 102 S. E., 200; Walsh v. Hall, 66 N. C., 233.

In the construction of a pleading to determine whether or not the allegations meet the requirements laid down by the Court, we are directed by statute to construe such allegations liberally with a view to substantial justice between the parties. G. S., 1-151; C. S., 535; Hawkins v. Land Bank, 221 N. C., 73, 18 S. E. (2d), 823.

“The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of facts contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted. . . .” Mallard v. Housing Agency, 221 N. C., at p. 338, 20 S. E. (2d), 281, and the cases there cited.

We think the complaint herein, when construed in conformity with the authorities cited, does state a cause of action.

The appellants further contend that the attorney referred to in the complaint is a necessary party defendant. The contention is untenable. The plaintiffs were directed to deal with Mr. Funderburk’s attorney, and if false representations were made by him to the plaintiffs, while acting as agent of the defendants as alleged, the defendants are liable for the acts of their agent. Qui facit per alium, facit per se. The action may be brought against the principals only. Griffin v. Lumber Co., 140 N. C., 514, 53 S. E., 307; 2 Am. Jur., sec. 436, p. 344.

The appellants have abandoned the contention that the defendant Harlee is an improper party. We think it not amiss to state, however, that in an action to reform a deed, all parties claiming an interest in the land or any part thereof, purported to have been conveyed by the instrument sought to be reformed, and whose interest will be affected by the reformation of the instrument, are necessary parties to the action. First Nat. Bank v. Thomas, 204 N. C., 599, 169 S. E., 189; G. S., 1-57; C. S., 446.

The demurrers were properly overruled.

Affirmed.