Wooten v. S. R. Biggs Drug Co.

AlleN,- J. The plaintiff was not entitled to notice of the motion to dismiss the action because the motion was made at a regular term of court. Hemphill v. Moore, 104 N. C., 379; Coor v. Smith, 107 N. C., 430; Stith v. Jones, 119 N. C., 430. The rule as to motions made in term is stated in Goor v. Smith to be that, “While the action is pending no actual notice is required, as all parties are presumed to have notice of all motions, orders, and decrees made in the cause.” Nor was it the duty of his Honor to find as a fact that the demand for judgment by the plaintiff was not made in good faith. The term “good faith” may be found in many of the opinions of this Court dealing with the question of jurisdiction, but it means more than *67 an bonest purpose. It implies that the demand shall be related to the facts alleged, and shall follow as a natural and reasonable conclusion from them, and in cases like the one before us, to recover damages for breach of contract, the allegations of fact in the complaint must show an enforcible contract. In Realty Co. v. Corpening, 147 N. C., 613, the demand was for $500, when on the facts alleged the plaintiff could only recover $200. The action was dismissed in this Court upon the ground that the Superior Court did not have jurisdiction, the Court saying: “It is too well settled to admit of controversy that the jurisdiction is fixed by the amount for which in the aspect most favorable for the plaintiff judgment could be rendered upon the facts set out.” There are many other eases in our Reports of like import: Frœlich v. Express Co., 67 N. C., 1; Wiseman v. Witherow, 90 N. C., 140; Brock v. Scott, 159 N. C., 513. In the last case cited the jurisdiction of the Superior Court was sustained because upon the facts alleged in the complaint the plaintiff was entitled to recover more than $200; but it was pointed out that the court would not be deprived of jurisdiction by reason of the failure of the plaintiff to sustain his entire demand upon the trial or because a part of his claim might be baséd upon a misconception of a legal principle. If, therefore, the “good faith” of the demand made by the plaintiff and the jurisdiction of the court are determined by the facts alleged, we must examine the allegations of the complaint to see what cause of action the plaintiff relies upon. The. first, second, and third allegations are sufficient to establish a cause of action to recover $100, but as this amount is not within the jurisdiction of the Superior Court, the plaintiff must rely on his cause of action based on the allegation that the plaintiff promised to notify him when it would be ready to let bids for its proposed purchase of drug fixtures. Does this allegation and those succeeding it, accepting them as true, establish an enforcible contract between the plaintiff and the defendant ? We think not. The written contract contains no such promise as is alleged, and the plaintiff must rely upon a verbal promise, and no consideration is alleged to support this promise. The sum of $100 which the defendant agreed to pay under the written contract was for the plans and specifications, and there is no allegation that in fixing this amount the parties were influenced one way or the other by the promise of the defendant to notify the plaintiff when it was ready to let out bids, and therefore this sum cannot be relied upon as a consideration. *68 Tbe promise of tbe defendant cannot be supported upon tbe ground tbat mutual promises constitute a consideration, because there is no allegation in tbe complaint tbat tbe plaintiff promised to bid, and if tbe defendant bad notified bim be could bave refused to bid without incurring tbe breach of any moral or legal obligation. Tbe promise, as alleged, amounted to no more than an offer which has never been accepted by tbe plaintiff and which could not constitute a contract until acceptance. It is lacking in tbe one thing without which a contract cannot be made, and tbat is, tbe assent of tbe parties to tbe agreement, tbe meeting of tbe minds upon a definite proposition. Elks v. Ins. Co., 159 N. C., 624. Again, tbe promise is too vague and indefinite. In Elks v. Ins. Co., supra, tbe Court, quoting from Page- on Contracts, says: “Tbe offer must not merely be complete in terms, but tbe terms must be sufficiently definite to enable tbe court to determine ultimately whether tbe contract has been performed or not. If no breach of tbe contract could be assigned which could be measured by any test of damages from tbe contract, it has been said to be too indefinite.” If tbe defendant bad notified tbe plaintiff be could bave refused to bid without incurring any liability, or if be bad bid tbe defendant was not obliged to accept, or if tbe bid bad been made and accepted tbe company represented by tbe plaintiff could bave refused to accept tbe order for tbe fixtures. Tbe right of tbe plaintiff to recover damages, assuming tbat there was a consideration to support tbe promise, is altogether conjectural and speculative. We are therefore of opinion tbat no cause of action is stated in tbe complaint, except for tbe recovery of $100, and as this is not within tbe jurisdiction of tbe Superior Court, tbe action was properly dismissed. Affirmed.