Pittsburgh Plate Glass Co. v. Hotel Corp.

147 S.E. 681, 197 N.C. 10, 1929 N.C. LEXIS 130

• Court: Supreme Court of North Carolina
• Decided: April 3, 1929
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: The first appeal in this case was heard at the Spring Term, 1927, and is reported in 193 N. C., 769, 138 S. E., 143, reference to which may be had for a fuller statement of the facts.

Conceding, without deciding, that plaintiff may not recover in the present action on the alleged compromise agreement between the Fidelity and Deposit Company of Maryland and G. L. Miller & Company, still the demurrer was improvidently sustained, for it is alleged in plaintiff’s reply that said compromise agreement was made with full knowledge of all the facts, and that such action on the part of the surety company amounted to a waiver of any fraud that may have existed, and constituted a ratification of the original bond so far as plaintiff is concerned. This is admitted by the demurrer. To strike out the reply, therefore, would deny to the plaintiff the right to show ratification, if it can.

The compromise agreement is not before us for construction, as we are not permitted to look beyond the allegations of the reply, or travel outside the scope, of the demurrer, in dealing with the present appeal. Furniture Co. v. R. R., 195 N. C., 636, 143 S. E., 242; Brick Co. v. Gentry, 191 N. C., 636, 132 S. E., 800.

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. Meyer v. Fenner, 196 N. C., 476; Wood v. Kincaid, 144 N. C., 393, 57 S. E., 4.

Reversed.