Meyer v. Fenner & Beane

146 S.E. 82, 196 N.C. 476, 1929 N.C. LEXIS 19

• Court: Supreme Court of North Carolina
• Decided: January 9, 1929
• Status: Published

Opinion

Stacy, C. J.

Conceding that the first class of contracts may be void, because in violation of sections 2144 and 2145 of the Consolidated Statutes, still it would appear that the demurrer was properly overruled, as the second class of contracts does not seem to come within the purview of the statutes above mentioned. It is the established rule that where a general demurrer is filed to a complaint as a whole, if any count of tbe pleading is good and states a cause of action, the demurrer should be overruled. Griffin v. Baker, 192 N. C., 297, 134 S. E., 651.

A complaint must be fatally defective before it will be rejected as insufficient. Blackmore v. Winders, 144 N C., 215, 56 S. E., 874. If any portion of it, pr'to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand. Brewer v. Wynne, 154 N. C., 467, 70 S. E., 947; Hoke v. Glenn, 167 N. C., 594, 83 S. E., 807.

A demurrer goes to the heart of a pleading and challenges the right of the pleader to maintain his position in any view of the matter, admitting, for the purpose, the truth of the allegations of fact contained therein. Brick Co. v. Gentry, 191 N. C., 636, 132 S. E., 800; Wood v. Kincaid, 144 N. C., 393, 57 S. E., 4.

Affirmed.