McGee v. Ledford

Barnhill, J. Plaintiff’s motion for judgment on tbe pleadings is in effect a demurrer to tbe answer. Pridgen v. Pridgen, 190 N.C. 102, 129 *273 S.E. 419; Raleigh v. Fisher, 232 N.C. 629, 61 S.E. 2d 897; Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384; Bessire and Co. v. Ward, 206 N.C. 858, 175 S.E. 208. Tbe motion in tbe nature of a demurrer admits (1) tbe truth of all well-pleaded facts in tbe answer, and (2) tbe untruth of plaintiff’s own allegations in so far as they are controverted in tbe answer. Raleigh v. Fisher, supra; Oldham v. Ross, 214 N.C. 696, 200 S.E. 393; Guerry v. Trust Co., 234 N.C. 644, 68 S.E. 2d 272. There can be no judgment for plaintiff on tbe pleadings unless tbe facts entitling plaintiff to relief are admitted and no valid defense or plea in avoidance is asserted in tbe answer. Hoover v. Crotts, 232 N.C. 617, 61 S.E. 2d 705; Bessire and Co. v. Ward, supra. It must appear that (1) tbe complaint states a good cause of action which entitles plaintiff to some relief, and (2) tbe answer, construed liberally in favor of tbe pleader, raises no material issue of fact. Dunn v. Tew, 219 N.C. 286, 13 S.E. 2d 536; Raleigh v. Fisher, supra. Tbe pertinent pleadings in this case, considered in tbe light of these well-recognized rules, which have been consistently applied by this Court, compel tbe conclusion that tbe admissions contained in tbe answer warranted tbe judgment entered in tbe court below. Tbe appellant admits tbe ownership of tbe property, tbe alleged contract with plaintiff to repair tbe fire damages to her dwelling located on said property, tbe contract price, tbe filing of a lien as required by law, her agreement to pay tbe contract price, and tbe nonpayment thereof. This leaves no material issue of fact to be answered by a jury. In this connection we must bear in mind that it is tbe duty of tbe court to consider tbe substitute answer stripped of any and all reference to tbe insurance company or any promise defendant alleges it made to pay tbe contract price for and on behalf of tbe original defendants. They bad been stricken from tbe answer prior to the motion for judgment on tbe pleadings. Even if we give consideration to such allegations, they are insufficient to absolve tbe defendant from liability on tbe contract she admits she made with plaintiff. Tbe contract respecting tbe proceeds of tbe insurance policy was entered into between defendants and tbe insurance company “for tbe benefit of tbe plaintiff,” and tbe insurance company is indebted to tbe defendants in tbe sum of $1,000, to be paid to tbem for tbe benefit of plaintiff. So sbe alleges. These allegations fall far short of any assertion that tbe contract to repair was entered into between plaintiff and tbe insurance company or that tbe insurance company is solely liable for tbe amount admittedly due plaintiff under a contract be made with tbe appellant. No doubt tbe defendant confidently anticipated that sbe would be able to discharge her liability to plaintiff out of tbe proceeds of *274 the policy. In all probability, it was so understood by all the parties. Even so, the failure of the insurance company to honor its draft does not serve to discharge defendant or shift sole liability to the insurance company. Delivery of the draft of the insurance company to defendants, and by defendants to plaintiff, was at most a conditional payment. When the draft was dishonored by the bank on order of the insurance company, the parties were relegated to their original creditor-debtor status. For the reasons stated, the judgment entered in the court below is Affirmed.