O. G. Parsley & Co. v. Nicholson

65 N.C. 207

• Court: Supreme Court of North Carolina
• Decided: January 5, 1871
• Status: Published

Opinion

Dick, J.

The complaint alleges:

1st. That the defendants received nine bales of cotton, from the agent of the plaintiffs, and promised to ship and sell the same, and out of the proceeds pay the plaintiffs the-amount which they claimed by virtue of their lien.

2nd. That the defendants sold said cotton for a sum of' money more than sufficient to satisfy the claim of the plaintiffs, and refused payment on demand, &c.

The defendants in their answer deny these allegations, and. the issues of fact thus joined were submitted to the jury.

The statement of the cause of action is sufficiently certain and positive, but the jury have found that it is not true in fact, and the evidence was fairly submitted by his Honor, in accordance with the 1st and 2nd instruction asked by the. plaintiffs.

His Honor properly refused the 3rd instruction asked. The cause of action alleged in the complaint is an express-contract, and the jury found that no such contract was made. If any contract with the plaintiffs arose by implication of law from the facts disclosed by the evidence of the defendants, the complaint ought to have been amended so as to meet such state of facts by proper allegations.

The rules of pleading at common law have not been abrogated by the C. C. P. The essential principles still remain, and have only been modified as to technicalities and matters of form. The object of pleading, both in the old :and new system, is to produce proper issues of law or fact, so that justice may be administered between parties litigant with regularity and certainty.

Every material allegation of the complaint which is controverted by the answer must be sustained in substance by proofs.

In the case before us the contract alleged in the complaint is denied in the answer, and the jury have decided the issues in favor of the defendants.

There is no error and the judgment is affirmed.

Per Curiam. Judgment affirmed.