New Bern Banking & Trust Co. v. Duffy

72 S.E. 96, 156 N.C. 83, 1911 N.C. LEXIS 137

Opinion

Walker, J.

This is an action ujton a note, originally made by R. N. Duffy and A. C. Burnett to D. H. Green, and by the latter indorsed for value to the plaintiff. In a former suit we directed that a judgment be entered against R. N. Duffy and that the cause proceed against D. H. Green, for whom a new summons was issued and executed. A. C. Burnett has never been served with process and is, therefore, not a party to the suit so as to be bound by any judgment therein. The facts are stated in a case by the same title, 153 N. C., 62.

Defendant demurred to the complaint upon the following grounds: 1. That the corporate existence of the plaintiff is not alleged. It appears by allegations of the complaint, that defendant, D. H. Green, dealt with the plaintiff as if it had lawful right to contract with him and he indorsed the j>aper to plaintiff, thereby impliedly admitting that it is a corporation, as it purported to be. In Ryan v. Martin, 91 N. C., 465, Judge Merrimon said: “It is true that it must appear that there was a corporate existence, either de jure or de facto at least. And if the corporation itself were suing, it would be necessary for it to prove its charter, and an organization in accordance therewith, if these matters were properly put in issue. But if a person entered into a contract with a body purporting to be a corporation, or wbicb claims to bold property purchased, and derives title thereto from it, this is prima facie evidence against such person that such corporation was in existence, de facto at least, at the time of the contract with or purchase from it, and the presumption arises in such case that the existence of the corporation continues at the bringing of the action. Accordingly, it has been held in an action against the maker of a promissory note executed to a corporation as payee, in its corporate name, that the production of the note duly indorsed to the plaintiff was sufficient evidence that the corporation was duly organized and competent to transact business. Williams v. Cherry, 3 Gray, 215, 220. It was said in that case that the defendants, by giving their notes to the corporation in their corporate name as payees, admitted their legal existence and capacity to make and enforce the contracts declared on, so far at least as to render proof on that point unnecessary in the opening of the plaintiff’s ease.” So in Stanly v. R. R., 89 N. C., 331, it was held that a railroad company in a suit against it may be designated as a company by its corporate name, without an averment of its corporate capacity; and if this is disputed, it should be by answer and not by demurrer. Where the defendant’s counsel insisted that a declaration describing the defendant as a company, without showing whether or not it was a corporation, was open to a demurrer, Mr. Justice Maulé said: “There is no positive rule, that I am aware of, which requires such a mode of description as the defendant’s counsel insists upon in this case, nor is the description which is given at all out of the usual form. It impliedly amounts to an allegation that the defendant is a corporate body.” Wolfe v. Steamboat Company, 62 E. C. L., 103.

The note was to become due at a day certain, with a provision that if there was a default in payment of any installment of interest at its maturity, and for ten days after a demand, plaintiff might sue upon the note before the day fixed fpr its maturity. Plaintiff alleged that demand had been made for the payment of interest after default, and that the same, has not been paid. It is argued by the defendant’s counsel that there is neither an allegation that demand was made upon this defendant nor that, if made, ten days had expired before this suit was commenced, so as tO' bring the demand within the terms and requirements of the bond. The record shows that the suit was begun on 20 April, 1911, and summons served on 24 April, 1911. We may look at the summons to ascertain this fact. Harrington v. Wadesboro, 153 N. C., 437, where a learned discussion of the subject by Justice Holes will be found, backed by a copious citation of authorities. So that this ground of demurrer is not true in fact. That the demand was made upon this defendant, D. H. Green, sufficiently appears in the complaint. He is now the only defendant, and we cannot assume that the plaintiff made a demand upon some one who did not owe the debt, or upon a person who had not been sued. The allegation, by fair construction and intendment, means that it was made upon D. H. Green. We have had occasion to state the rule by which, under The Code, a pleading should be construed so as to ascertain its meaning, and it is to this effect: The uniform rule prevailing in our present feystem is that, for the purpose of ascertaining the meaning and determining the effect of a pleading, its allegations shall be liberally construed, with a view to substantial justice between the parties. Revisal, sec. 495. This does not mean that a pleading shall be construed to say what it does not, but that if it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it. Buie v. Brown, 104 N. C., 335. As a corollary of this rule, therefore, it may be said that a complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in any portion of it, or 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, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements; for, contrary to the common-law rule, everjf reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient. 4 Ene. PL and Pr., p. 74 et seq.; Stokes v. Taylor, 104 N. C., 394; McEachin v. Stewart, 106 N. C., 336; Halstead v. Mullen, 93 N. C., 252; Purcell v. R. R., 108 N. C., 414; Holden v. Warren, 118 N. C., 327. There should, of course, be at least substantial accuracy in the averments. Morton v. McDevitt, 122 N. C., 755. It is also required that there should be not only certainty, but clearness and conciseness, and a compliance with the other essential rules in the science of pleading which have been adopted for the purpose of evolving the real issues from the controversy; but if -there is any formal defect in this respect which renders the pleading unintelligible, or the precise nature of the charge or defense be not apparent by reason thereof, it can be corrected on motion (Revisal, sec. 496), or in some case where there is a defective statement, as the omission of a necessary allegation, which can be cured by amendment, a demurrer will lie. Bowling v. Burton, 101 N. C., 176; Mizzell v. Ruffin, 118 N. C., 69; Ladd v. Ladd, 121 N. C., 118; Blackmore v. Winders, 144 N. C., 212.

Tested by this rule, the complaint, while not very explicit in its statements, is sufficiently so to resist and repel the attack of a demurrer.

We will not adjudge this demurrer to be frivolous, as the plaintiff alleges it to be, but it narrowly escapes such a condemnation. The able and ingenious argument of the learned counsel has convinced us that it should not be so characterized, and has thus rescued it from the fate to which we have been asked to consign it. We have held that a pleading will not be adjudged frivolous, irrelevant, or impertinent, ■ so as to entitle the other party to a judgment non obstante plácito, unless it is clearly and palpably so. Hull v. Carter, 83 N. C., 249. If it raises a question, whether of law or fact, fit for consideration or discussion, we will not adjudge it to be irrelevant and as not standing in the way of a summary judgment upon the pleadings. Womble v. Fraps, 77 N. C., 198. Even under the old system of pleading and practice, the courts hesitated to give judgment upon a pleading unless it plainly raised no real issue of law or fact, for Baron Parhe said in Linwood v. Squire, 5 Exch. (W. H. and G.), 234: “I do not say that the plea is a good plea, as it is not necessary to decide that question, but a plaintiff bas no right to sign judgment if tbe plea raises a serious question and one wbieb is fit for discussion.” Tbe. courts do not encourage tbe practice of moving for judgment upon an answer or demurrer as being frivolous. Womble v. Fraps, supra; Swepson v. Harvey, 66 N. C., 436; Erwin v. Lowery, 64 N. C., 321. Tbe more recent cases upon this subject are collected in tbe excellent note of Judge Pell, in bis annotations to section 472 of tbe Revisal, a reference to wbieb will suffice, without further remark upon tbe decisions. "We have found it necessary, in this case, to discuss tbe question presented by tbe demurrer, especially as to tbe demand, in order to decide it.

We find no error in tbe ruling of tbe court.

No error.