Sossamon v. Oaklawn Cemetery, Inc.

193 S.E. 720, 212 N.C. 535, 1937 N.C. LEXIS 360

• Court: Supreme Court of North Carolina
• Decided: November 24, 1937
• Status: Published

Opinion

Stacy, C. J.

The question for decision is whether it is mandatory in an action on a written contract to make the entire writing a part of the complaint. The answer is “No,” especially where the part omitted from tbe complaint, as in tbe instant case, is in tbe possession of the-defendant. R. R. v. Robeson, 27 N. C., 391; Gorman v. Bellamy, 82 N. C., 497; Thompson v. Johnson, 202 N. C., 817, 164 S. E., 357; 21 R. C. L., 493.

An allegation containing tbe substance of tbe agreement, as in tbe present complaint, will suffice as against a demurrer. Ins. Co. v. Dey, 206 N. C., 368, 174 S. E., 89; Deloatch v. Vinson, 108 N. C., 147, 12 S. E., 895; McIntosh N. C. Prac. & Proc., sec. 358.

Tbe record presents no question of proferí or oyer. C. S., 1823; 21 R. C. L., 478. Nor is tbe action “founded upon an instrument for tbe payment of money only.” C. S., 540.

Of course where tbe writing is made a part of tbe complaint, wbicb is usually done, and ordinarily desirable perhaps, tbe court is not bound by tbe conclusion of tbe pleader as to its meaning, Horney v. Mills, 189 N. C., 724, 128 S. E., 324, but this is not our case. 21 R. C. L., 476.

Tbe complaint is good as against a demurrer.

Reversed.