Lenoir Realty & Insurance v. Corpening

61 S.E. 528, 147 N.C. 613, 1908 N.C. LEXIS 108

• Court: Supreme Court of North Carolina
• Decided: May 13, 1908
• Status: Published

Opinion

CoNNOR, J.

The plaintiff is confronted with the fact that in no possible aspect of the complaint can it recover more than $200. The commission for making sale was to be five per cent. This included all expenses and payment for services rendered in making sale. The amount for which the sale was made was $4,000, hence the commission could not exceed $200. It is too well settled to admit of controversy that the jurisdiction is fixed by the amount for which in .the aspect most favorable for plaintiff judgment could be rendered upon the facts set out. Frœlich v. Express Co., 67 N. C., 1. It is also settled that the objection to the jurisdiction can be raised for the first time in this Court.. It is constitutional and may not be waived. It is true that in some eases the plaintiff may waive the contract and sue in tort, as in Bowers v. Railroad, 107 N. C., 721. This is not one of the cases. The refusal of defendant to execute a deed is simply a breach of his contract, as if he had promised, to pay plaintiff $200 for services rendered. Calling it a tort does not make it one. Without passing upon the exception to the judgment of non-suit, we are compelled to dismiss the action because the Superior Court had no jurisdiction. It is so ordered.

Dismissed.