Mitchem v. . Pasour

92 S.E. 322, 173 N.C. 487, 1917 N.C. LEXIS 329

• Court: Supreme Court of North Carolina
• Decided: May 9, 1917
• Status: Published

Opinion

Allek, J.

The uniform rule under our system of pleading is to construe the allegations liberally in favor of the pleader, with a view to substantial justice between the parties (Brewer v. Wynne, 154 N. C., 471), and “when the action can be fairly treated as based either in contract or in tort, the courts, in favor of jurisdiction, will sustain the election made by the plaintiff” (Schulhofer v. R. R., 118 N. C., 1096, approved in White v. Ely, 145 N. C., 36) ; and further: “If the complaint is so worded that under the liberal procedure of The Code it could have been construed to be either an action on an express or implied contract (Stokes v. Taylor, 104 N. C., 394; Fulps v. Mock, 108 N. C., 601; Holden v. Warren, 118 N. C., 326) or either in tort or contract (Brittain v. Payne, 118 N. C., 989, Schulhofer v. R. R., 118 N. C., 1096; Timber Co. v. Brooks, 109 N. C., 698; Bowers v. R. R., 107 N. C., 721, or as a common-law action or one under the statute (Roberson v. Morgan, 118 N. C., 991), the Court will sustain the juris"diction.” Sa ms v. Price, 119 N. C., 573.

In Bowers v. R. R., 107 N. C., 727, these principles were applied and the jurisdiction of the Superior Court sustained to recover less than $200 upon a complaint which alleged a contract as the foundation of the action, and the negligent failure to perform the contract, and applying them to the allegations of the complaint in the present action it is clear that an action in tort,' which is within the jurisdiction of the Superior Court, is alleged, as the complaint alleges a tenancy, the nonpayment of rent, and a conversion of the crops raised on the lands rented. The judgment dismissing the action must be- set aside.

Reversed.