Guerry v. American Trust Co.

YaleNtiNb, J. Was tbe court below correct in sustaining the plaintiff’s 'general demurrer to tbe defendant’s entire answer? This is tbe only question for decision upon this appeal. It is settled that tbe sufficiency of an answer may be challenged and tested by a demurrer. McIntosh, page 507, sec. 475; Williams v. Hospital Association, ante, 536. A demurrer admits tbe truth of all tbe allegations of fact contained in tbe pleading as well as all relevant inferences of fact reasonably deducible therefrom. Insurance Co. v. McCraw, 215 N.C. 105, 1 S.E. 2d 369, and cases there cited. Both tbe statute, Gr.S. 1-151, and tbe decisions of this Court oía tbe subject are to tbe effect that a pleading as against a demurrer must be liberally construed in favor of tbe pleader. Facts alleged in an answer, although inartfully drawn, are sufficient to withstand a demurrer, if upon a liberal construction thereof tbe pleading is sufficient to present one or more defenses. Pridgen v. Pridgen, 190 N.C. 102, 129 S.E. 419; Dixon v. Green, 178 N.C. 205, 100 S.E. 262; Farrell v. Thomas, 204 N.C. 631, 169 S.E. 224; King v. Motley, 233 N.C. 42, 62 S.E. 2d 540. ' A pleading must be fatally and wholly defective before it will be rejected as insufficient. If tbe answer contains facts sufficient to constitute one or more defenses in any part or to any extent or if facts sufficient for that purpose can be fairly gathered from it, it is not demurrable, regardless of bow uncertain or inartfully drawn it appears, or bow defective or redundant its statements maybe. Every reasonable intendment and presumption must be made in favor of tbe pleader. Fairbanks v. *647 Murdock, 207 N.C. 348, 177 S.E. 122; Vincent v. Powell, 215 N.C. 336, 1 S.E. 2d 826; Insurance Co. v. McCraw, supra; Presnell v. Beshears, 227 N.C. 279, 41 S.E. 2d 835; Dickensheets v. Taylor, 223 N.C. 570, 27 S.E. 2d 618; S. v. McCanless, 193 N.C. 200, 136 S.E. 371; Steele v. Cotton Mills, 231 N.C. 636, 58 S.E. 2d 620; Bryant v. Ice Co., 233 N.C. 266, 63 S.E. 2d 547. Tbe defendant sets up as defenses tbat sometime during tbe year 1946 Hood Motor Company, Inc., tbe subtenant then in possession of tbe premises, notified and called upon Dr. LeGrand Guerry, tbe owner and lessor of tbe premises, to make certain repairs to tbe building, and pursuant thereto Dr. Guerry procured tbe repairs and paid for tbe same; tbat after tbe death of Dr. Guerry tbe said Motor Company in tbe years 1948 and 1949 notified and called upon tbe executor of tbe estate of Dr. Guerry for further repairs to tbe leased building and on both occasions tbe plaintiff caused tbe said repairs to be made and paid for tbe same; tbat tbe defendant was never notified either by Dr. Guerry or bis executor or anyone else tbat repairs were necessary to tbe said premises; tbat neither Dr. Guerry nor bis executor required tbe Motor Company to make tbe repairs although they knew at all times tbat tbe said Motor Company was in possession of tbe premises under a sublease of tbe defendant; tbat tbe failure of such notice to tbe defendant prevented him from ascertaining whether repairs were necessary, and, if so, whether such repairs were required of him under tbe terms of bis lease and further prevented him from requiring tbe Hood Motor Company to make said repairs as required of it under tbe sublease. Hpon these facts, tbe defendant contends tbat be bad no chance to ascertain whether tbe repairs to tbe building were necessary and whether they were included in or excluded from tbe covenant to repair contained in bis lease. He further contends tbat Dr. Guerry and bis executor had full knowledge of all tbe facts and circumstances surrounding tbe entire transaction and tbat tbe repairs were voluntarily made and paid for by Dr. Guerry and bis executor and tbat tbe defendant is therefore not liable for the costs of said repairs or any part thereof. Defendant’s allegation tbat tbe plaintiff and bis testator were volunteers in making and paying for tbe repairs brings them within tbe well established rule of law tbat tbe voluntary payment of money by a person who has full knowledge of all tbe facts cannot be recovered. Commissioners v. Commissioners, 75 N.C. 240; Commissioners v. Setzer, 70 N.C. 426; Brummitt v. McGuire, 107 N.C. 351, 12 S.E. 191. To tbe same effect is Bank v. Taylor, 122 N.C. 569, 29 S.E. 831; Bernhardt v. R. R., 135 N.C. 258, 47 S.E. 427; Williams v. McLean, 220 N.C. 504, 17 S.E. 2d 644. *648 A waiver is sometimes defined to be an intentional relinquishment of a known right. The act must be voluntary and must indicate an intention or election to dispense with something of value or to forego some advantage which the party waiving it might at his option have insisted upon. The waiver of an agreement or of a stipulation or condition in a contract may be expressed or may arise from the acts and conduct of the party which would naturally and properly give rise to an inference that the party intended to waive the agreement. Where a person with full knowledge of all the essential facts dispenses with the performance of something which he has the right to exact, he therefore waives his rights to later insist upon a performance. A person may expressly dispense with the right by a declaration to that effect, or he may do so with the same result by conduct which naturally and justly leads the other party to believe that he has so dispensed with the right. Alexander v. Bank, 155 N.C. 124, 71 S.E. 69; Furniture Co. v. Cole, 207 N.C. 840, 178 S.E. 579. Neither the plaintiff nor his testator were under legal or contractual obligation to make the repairs. They had the right to demand that the tenant comply with his contract in this respect and make the necessary repairs. They knew that the original tenant was not in possession and that he, therefore, would have no knowledge of the necessity for repairs. There, was no demand upon or refusal by the defendant to perform the covenant to repair. Hence, the voluntary acts of plaintiff and his testator in making the repairs and paying for the same without notice to or demand upon the tenant constitute a waiver in the nature of an estoppel. Clement v. Clement, 230 N.C. 636, 55 S.E. 2d 459. Substantial justice between the parties is the point always in view in the construction of pleadings. Kemp v. Funderburk, 224 N.C. 353, 30 S.E. 2d 155. Measuring the facts set up in defendant's answer by the applicable rules of law, it would appear that the defendant’s answer is sufficient to repel plaintiff’s demurrer. It follows, therefore, that his Honor was in error in sustaining plaintiff’s demurrer, and we so hold. Reversed.