No. 313.

87 S.E.2d 5 (1955)

242 N.C. 145

J. Owen LINDLEY and Charles Lindley v. Georgina YEATMAN and Mildred Mulford.

Supreme Court of North Carolina.

April 20, 1955.

Attorney(s) appearing for the Case

Lewis S. Pendleton, Jr., Richmond, Va., and Hughes & Hines, Greensboro, for plaintiffs, appellants.

C. R. Wheatley, Jr. and J. F. Duncan, Beaufort, for defendants, appellees.

JOHNSON, Justice.

A demurrer to a complaint for failure to state facts sufficient to constitute a cause of action admits the truth of every material fact properly alleged. Gaines v. Long Mfg. Co., 234 N.C. 331, 67 S.E.2d 355; Bryant v. Little River Ice Co., 233 N.C. 266, 63 S.E.2d 547. See also Scott v. Statesville Plywood & Veneer Co., 240 N.C. 73, 81 S.E.2d 146. However, it is to be noted that on demurrer only facts properly pleaded are to be considered, with legal inferences and conclusions of the pleader to be disregarded. Shives v. Sample, 238 N.C. 724, 79 S.E.2d 193; Citizens Bank of Marshall v. Gahagan, 210 N.C. 464, 187 S.E. 580; Ideal Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800; Broad Street Bank v. National Bank, 183 N.C. 463, 112 S.E. 11, 22 A.L.R. 1124.

Nor does a demurrer admit the alleged construction of an instrument when the instrument itself is incorporated in the pleading and the construction alleged is repugnant to the language of the instrument. U. S. v. Ames, 99 U.S. 35, 25 L.Ed. 295; 41 Am.Jur., Pleading, section 243, p. 462. See also Annotation: 97 Am.St.Rep. 833.

Moreover, where in stating a single cause of action the complaint alleges two repugnant statements of facts, the repugnant allegations destroy and neutralize each other, and where, with the repugnant allegations thus eliminated, the remaining averments are insufficient to state a cause of action, demurrer will lie. Jacksonville, etc., Co. v. Thompson, 34 Fla. 346, 16 So. 282, 26 L.R.A. 410; Wood v. Security Petroleum Co., Tex.Civ.App., 282 S.W. 943; 41 Am.Jur., Pleading, section 47. See also McIntosh, N.C.Practice and Procedure, section 353, p. 353; 41 Am.Jur., Pleading, section 221.

Where, on demurrer, there is a defective statement of a good cause of action, the complaint is subject to amendment and the cause should not be dismissed until the time for obtaining leave to amend has expired, G.S. § 1-131; but where there is a statement of a defective cause of action, final judgment dismissing the action should be entered. Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409; Redic v. Mechanics & Farmers Bank, 241 N.C. 152, 84 S.E.2d 542.

Conceding, without deciding, that the allegations of the complaint, when considered without reference to the written contract incorporated in the complaint, are sufficient to set forth a cause of action for breach of contract, even so, it is manifest that material phases of such allegations are repugnant to the plain language of the written instrument and that under the terms of the instrument the plaintiffs are not entitled in any aspect of the case to recover against the defendants, or either of them, for loss of profits, past or prospective, on the theory of breach of contract. The plaintiffs in their allegations refer to the development project as a joint adventure in which the parties were to share mutually in the profits; whereas the written contract specifies it is contemplated that the project shall be operated on an experimental basis for one year at least, with no reference being made to profits or to any formula for division of profits among the parties. Indeed, it is implicit in the recitals and stipulations of the written instrument that no profits were anticipated during the trial period. Moreover, the written instrument designates the plaintiffs as "managers of the Open Grounds Farm," to serve at will of the defendant Yeatman, and fixes their compensation. No part of the compensation so fixed is alleged to be in default or is sued for in this action.

Here, then, at most we have a situation wherein the complaint alleges two repugnant statements of facts, which neutralize and destroy each other, leaving insufficient allegations to state a cause of action. Therefore the demurrers were properly sustained. See Scott v. Statesville Plywood & Veneer Co., supra, 240 N.C. at page 77, 81 S.E.2d at pages 149, 150; Sabine v. Gill, 229 N.C. 599, top page 603, 51 S.E.2d 1, 3.

It is manifest that as against the defendant Mulford the averments of the complaint constitute nothing more than a statement of a defective cause of action. Hence as to her the action was properly dismissed. Mills v. Richardson, supra. And, clearly, no harm has come to the plaintiffs from the trial court's ruling that the complaint constitutes a defective statement of a good cause of action, rather than a statement of a defective cause of action, against the defendant Yeatman, thus entitling the plaintiffs to amend as to her.

The judgment below is


BARNHILL, C. J., took no part in the consideration or decision of this case.


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