No. 309.

58 S.E.2d 617 (1950)

231 N.C. 647


Supreme Court of North Carolina.

March 29, 1950.

Attorney(s) appearing for the Case

Edw. M. Hairfield, Jr., Morganton, for plaintiffs appellants.

O. L. Horton, Morganton, for defendants appellees.

WINBORNE, Justice.

Is there error in the judgment sustaining defendants' demurrer to the complaint of plaintiffs, on the ground that the allegations contained therein are insufficient to state a cause of action?

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted", Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See also Dickensheets v. Taylor, 223 N.C. 570, 27 S.E.2d 618; Penn v. Carolina Virginia Coastal Corp., 231 N.C. 481, 57 S.E.2d 817, and numerous other cases.

Both the statute, G.S. § 1-151, and the decisions of this Court, applying the statute, require that the pleading be liberally construed, and that every reasonable intendment and presumption must be in favor of the pleader. A pleading must be fatally defective before it will be rejected as insufficient. Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560, 11 S.E.2d 550; Corbett v. Hilton Lumber Co., 223 N.C. 704, 28 S.E.2d 250; Sandlin v. Yancey, 224 N.C. 519, 31 S.E.2d 532; Ferrell v. Worthington, 226 N.C. 609, 39 S.E.2d 812; Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835; Winston v. Williams & McKeithan Lbr. Co., 227 N.C. 339, 42 S.E.2d 218; Wilson v. Chastain, 230 N.C. 390, 53 S.E.2d 290; Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43.

Moreover, the liberal rule of construction is that the court will grant relief according to the facts alleged and proved, though there be no formal prayer for relief corresponding with the allegations, and even though relief of another kind may be demanded. McIntosh N. C. P. & P., Section 370(2). Voorhees v. Porter, 134 N.C. 591, 47 S.E. 31, 65 L.R.A. 736; Bradburn v. Roberts, 148 N.C. 214, 61 S.E. 617.

Applying these principles to the allegations of the complaint, we are unable to say that in no view no cause of action is stated.

As to the first ground upon which demurrer is based: Defendants, in their brief filed in this Court, now concede that in this State the provisions of the statute of frauds, G.S. § 22-2, may not be taken advantage of by demurrer. See Hemmings v. Doss, 125 N.C. 400, 34 S.E. 511, and cases cited. See also Embler v. Embler, 224 N.C. 811, 32 S.E.2d 619.

As to the other grounds upon which the demurrer is based, it appears that the complaint alleges, at least, that $1,000 of the original loan to the Braggs was unspent and in the hands of the defendant Building and Loan Association at the time plaintiffs entered the picture, and that the Building and Loan Association agreed with plaintiffs that it would pay this amount in completing the unfinished dwelling in the respects detailed, and that it, the Building and Loan Association, later declined to do so. Taking these allegations to be true, it would seem that the complaint is not fatally defective.

Hence the judgment sustaining the demurrer is



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