Montague v. Womble

Supreme Court of North Carolina

Montague v. Womble

153 S.E.2d 856, 270 N.C. 152, 1967 N.C. LEXIS 1316

DecidedApril 19, 1967

StatusPublished

This text of 153 S.E.2d 856 (Montague v. Womble) 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

Montague v. Womble, 153 S.E.2d 856, 270 N.C. 152, 1967 N.C. LEXIS 1316 (N.C. 1967).

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Opinion

Per Curiam.

The plaintiffs’ complaint is quoted in full, the defendant’s answer is summarized, and the pertinent facts involved in this controversy are discussed in the former opinion of this Court reported in 267 N.C. 360.

The plaintiffs’ cause of action was based entirely on the allegation the defendant issued to the plaintiffs a check for $5,000 which did not clear the bank. They demanded judgment for the amount of the check and interest. The defendant admitted signing and delivering the check. As a plea in bar, he alleged the check was intended as a down payment or credit on the purchase price of a [153]*153house and lot which the parties were then negotiating; that the negotiations were entirely in parol, were never consumated and, in fact, the plaintiffs sold and conveyed the house and lot to another; and that the defendant received nothing for the check. These facts appeared from the plaintiffs’ testimony at the trial. They admitted the house and lot were sold to another purchaser. This Court reversed the judgment in plaintiffs’ favor entered in the court below upon the ground the plaintiffs’ evidence established the defendant’s plea in bar.

After our decision was certified to the Superior Court, the plaintiffs appeared and moved to amend their complaint, attempting to set up another and different cause of action. Judge Bone denied the motion and the plaintiffs appealed. When the plea in bar was established, the effect was to destroy the cause of action alleged. Judge Bone was correct in refusing to permit the plaintiffs to amend. The judgment is

Affirmed.

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Per Curiam.

The plaintiffs’ complaint is quoted in full, the defendant’s answer is summarized, and the pertinent facts involved in this controversy are discussed in the former opinion of this Court reported in 267 N.C. 360.

The plaintiffs’ cause of action was based entirely on the allegation the defendant issued to the plaintiffs a check for $5,000 which did not clear the bank. They demanded judgment for the amount of the check and interest. The defendant admitted signing and delivering the check. As a plea in bar, he alleged the check was intended as a down payment or credit on the purchase price of a [153]*153house and lot which the parties were then negotiating; that the negotiations were entirely in parol, were never consumated and, in fact, the plaintiffs sold and conveyed the house and lot to another; and that the defendant received nothing for the check. These facts appeared from the plaintiffs’ testimony at the trial. They admitted the house and lot were sold to another purchaser. This Court reversed the judgment in plaintiffs’ favor entered in the court below upon the ground the plaintiffs’ evidence established the defendant’s plea in bar.

After our decision was certified to the Superior Court, the plaintiffs appeared and moved to amend their complaint, attempting to set up another and different cause of action. Judge Bone denied the motion and the plaintiffs appealed. When the plea in bar was established, the effect was to destroy the cause of action alleged. Judge Bone was correct in refusing to permit the plaintiffs to amend. The judgment is

Affirmed.

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Bluebook (online)

153 S.E.2d 856, 270 N.C. 152, 1967 N.C. LEXIS 1316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montague-v-womble-nc-1967.

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