Walker v. Nicholson

Rodman, J. Determination of the appeal depends on the answers to these questions: Do the allegations establish a defective cause of *746 action? If so, the court was correct in dismissing the action. Parrish v. Brantley, 256 N.C. 541, 124 S.E. 2d 533. Is the complaint defective because of the failure to allege some essential fact? If so, the action should not be dismissed but an opportunity should be given to amend the pleading by alleging the additional essential fact. G.S. 1-131; Parrish v. Brantley, supra. Plaintiff has not complied with G.S. 1-122(2). The complaint is not a “plain and concise statement of the facts constituting a cause of action.” It is a mixture of asserted facts and conclusions. Summarized, the complaint alleges these facts: Plaintiff is assistant pastor of the First Baptist Church of Roanoke Rapids. It is his duty, in the absence of the pastor, to preside at business meetings of that church. He was presiding at such a meeting on Friday, 20 October 1961. Defendant is a resident of Weldon and is pastor of several churches in Northampton and Halifax Counties, but has no connection with the First Baptist Church of Roanoke Rapids. On the night of 20 October 1961 defendant came to the First Baptist Church of Roanoke Rapids, interfered with plaintiff in the performance of his duties as presiding officer and “attempted to preside at said business meeting. . . (and) attempted to 'SILENCE’ the plaintiff. . .” Secs. 5 and 6 of the complaint read as follows: “5. That the said ministerial interference with the assigned duties of the plaintiff and in the internal affairs of the First Baptist Church by the defendant, destroys the Gospel Order and purposes of the Church and makes it impossible for the Church to discipline rebellious members and also makes it impossible to protect and preserve the law and order of the Church; that said interference by the defendant, if continued, would split the membership of the Church and weaken the influence of the Church in performing its function in the community; that said conditions cause irreparable harm to the Church and will be continued by the defendant unless restrained and enjoyed by this Court. “6. That the plaintiff seeks an injunction and a restraining order against the defendant, restraining and enjoining the defendant from assuming pastoral authority at the First Baptist Church of Roanoke Rapids, N. C. or the moderatorship or presiding officer at the Church’s business meetings or interfering with the rights, duties and privileges of the plaintiff as a member of the Church and as presiding officer of the business meetings of the Church, so long as the defendant is not Pastor of said Church or a member of said Church.” The prayer of the complaint is for injunctive relief restraining “defendant from assuming pastoral authority at the First Baptist Church of Roanoke Rapids, N. C. or the moderatorship or presiding officer at *747 the Church’s business meetings or interfering with the rights, duties and privileges of the plaintiff as a member of the Church and as Presiding Officer of the business meetings of the Church, so long as the defendant is not Pastor of said Church or a member of said Church.” One becomes pastor of a church pursuant to a contract made with the person or body having the authority to employ. First Presbyterian Church v. Myers, 5 Okla. 809, 50 Pac. 70, 38 L.R.A. 687; 76 C.J.S. 794; 45 Am. Jur. 740. When a stranger interferes and prevents performance of a contract, either party to the contract may maintain an action against the stranger for the damages sustained by him or it. Fowler v. Insurance Co., 256 N.C. 555, 124 S.E. 2d 520; Childress v. Abeles, 240 N.C. 667, 84 S.E. 2d 176; Elvington v. Shingle Co., 191 N.C. 515, 132 S.E. 274; Anno. 26 A.L.R. 2d 1240. The right of action accrues because of the wrong done plaintiff; he cannot maintain an action to redress a wrong done the other party to the contract. G.S. 1-57; Sanitary District v. Lenoir, 249 N.C. 96, 105 S.E. 2d 411; Taylor v. R.R., 145 N.C. 400. It is, we think, apparent from the quoted allegations that plaintiff seeks to redress the asserted wrong done the church. To redress that wrong the church must bring the action. Collins v. Simms, 254 N.C. 148, 118 S.E. 2d 402; G.S. 1-69.1. The complaint, when liberally construed, also alleges a wrongful interference with plaintiff in the performance of his contractual obligation. Plaintiff would be entitled to recover such damages as resulted from such interference, but plaintiff here neither alleges nor seeks damages. He seeks only equitable relief — a restraining order. The only wrongful act alleged relates to a past occurrence. In-junctive relief is not appropriate to redress a completed tortious act. Branch v. Board of Education, 230 N.C. 505, 53 S.E. 2d 455. The concluding clause of sec. 5 of the complaint that the wrongful conduct of the defendant “will be continued by defendant unless restrained and enjoined” is a mere conclusion of the pleader and not a statement of fact. Wilcher v. Sharpe, 236 N.C. 308, 72 S.E. 2d 662; Thomas & Howard Co. v. Insurance Co., 241 N.C. 109, 84 S.E. 2d 337. Ordinarily money compensation is sufficient to redress wrongs torti-ously inflicted. Equity steps in only when irreparable injury is both real and immediate. Membership Corp v. Light Co., 256 N.C. 56, 122 S.E. 2d 761. The failure to allege facts evidencing an intent on the part of defendant to continue to interfere with plaintiff’s performance of his contract and facts showing that such interference will result in injury not compensable by an award of damages does not warrant a dismissal of his action. He should be given an opportunity to amend his com *748 plaint to allege these essential facts. G.S. 1-131; Lumber Co. v. Pamlico County, 250 N.C. 681, 110 S.E. 2d 278; Adams v. College, 247 N.C. 648, 101 S.E. 2d 809. A judgment by default cannot be rendered on a complaint which fails to state a cause of action. Even when the complaint states a cause of action, the court, in the exercise of its discretion, may extend defendant’s time to plead. G.S. 1-152; Early v. Eley, 243 N.C. 695, 91 S.E. 2d 919. The court did not err when it refused to render judgment by default. The judgment will be modified to conform with this opinion, and as thus modified it is affirmed. Modified and affirmed.