Bostwick v. Laurinburg & Southern Railroad

Hoke, J. Defendant seeks to sustain bis application to set aside tbe original judgment on two grounds: 1. Tbat tbe complaint is not properly verified. 2. Tbat it does not state a cause of action tbat justifies a judgment by default final. Considering these positions in reverse order, tbe complaint states plaintiff’s claim in tbe form of 3 causes of action, and demanding recovery for tbe same amount in eacb, $984.04. As a first cause of action, plaintiff avers: Tbat, in tbe late summer of 1916, tbey were engaged in shipping cantaloupes to market in car-load lots over defendant road, and bad a contract with defendant company tbat, on notice given by 7 p.m. of one day, defendant road would have tbe designated number of refrigerator cars on at tbe shipping station at Laurinburg, on tbe following morning by 7 a.m.; tbat tbe notice bad been given for 4 cars to be in readiness at tbe proper point on 1 August, 1916, and in expectation of compliance, plaintiff bad a sufficient number of cantaloupes properly crated, etc., and ready for shipment at tbe appointed hour and place; tbat defendant, in breach of its contract, failed to supply tbe cars till late in tbe afternoon, leaving tbe said cantaloupes exposed, etc., whereby tbey were greatly injured and deteriorated in value, to plaintiff’s damage, $984.04. Tbe third cause of action, alleging tbe same damages in bind and amount, is substantially a repetition of tbe first, and both containing a claim only for unascertained damages, a judgment by default final is irregular, and, on application made within a reasonable time and on a proper showing of merits, may be set aside in tbe sound legal discretion of tbe court. Beckton v. Dunn, 137 N. C., 559; Witt v. Long, 93 N. C., 388; Williams v. Lumber Co., 118 N. C., 928-936. And this, in proper instances, though tbe motions may be made more than 12 months from tbe rendition of tbe judgment, tbe decisions on tbe subject being to tbe effect tbat this 12 months limitation is a statutory restriction, Rev., 513, applying only to judgments which have been taken according to tbe course and practice of tbe court. Calmes v. Lambert, 153 N. C., 248, and authorities cited. *488 In the second cause of action, plaintiff states his claim in a more definite and precise way, as follows: After alleging that plaintiff at that time was engaged in shipping cantaloupes to market, and thát defendant was to supply refrigerator cars, on notice, there was a breach of contract, causing great damage and practical loss of melons, the complaint avers further that plaintiff had sold these particular melons to a responsible purchaser for $1,088.47; that the bargain was lost by reason of the injury occasioned by defendant’s breach of contract; that plaintiff presented claim for the entire price to defendant company, and was told by the “duly authorized agent of defendant to sell the damaged melons to the best advantage, credit the purchase price received on the bill as rendered, and that the defendant road would pay plaintiff the difference; that plaintiff, in compliance with these instructions, sold the melons for $104.48, credited same on the bill rendered, $1,088.47, leaving a balance due plaintiff of $984.04, for which judgment is claimed. “It is held with us that when a complaint states two or more causes of action and any one of them is sufficient to uphold a judgment by default final, such judgment will be uphéld, and this being true, we are of opinion that plaintiff’s suit, as presented in this second cause of action, is sufficiently definite and precise to support the judgment, that the same has been entered according to the course and practice of the court, and is in all respects regular. Scott v. Life Association, 137 N. C., 515-522; Cowles v. Cowles, 121 N. C., 272; Adrian & Vollers v. Jackson, 75 N. C., 536. “In Adrian & Voller’s case it was held that, where a claim for damages is precise and final by the agreement of the parties, or can be rendered certain by mere computation, there is no need of proof, as the judgment by default admits the claim. An inquiry is necessary only when the claim is uncertain. These decisions are but the proper and necessary construction of our statute on the subject, Rev., 556, which provides that a judgment by default final may be had on failure to answer, when a complaint sets forth one or more causes of action consisting of a breach of an express or implied contract to pay absolutely or upon a contingency a sum or sums of money fixed by the terms of the contract or capable of being ascertained thereupon by computation.” The motion having been made more than 12 months after rendition to the judgment, defendant’s right to relief on account of surprise or excusable neglect is precluded by the express terms of the statute, Rev., 513, requiring that such applications as against a regular judgment must be made within 12 months. In this aspect of the matter, therefore, his Honor was clearly right in holding against defendant as a conclusion of law. Lee v. McCracken, *489 170 N. C., 575. Tbe objection to tbe verification is without merit. Tbis was placed on tbe ground tbat tbe affidavit apparently showed that plaintiff bad appeared before himself. But a proper perusal of tbe affidavit will show tbat it is made by one of tbe plaintiffs; tbat it follows tbe form approved and required by tbe statute and precedents, and tbat it was duly made before tbe clerk, and here, too, we are of opinion tbat tbe judgment is according to tbe course and practice of tbe court, and has been properly upheld. There is no error, and tbe judgment is Affirmed.