McNeill v. . Thomas

Adams, J. The action is prosecuted against the defendant Thomas, administrator. He caused the land to be sold and holds it in trust under the deed executed by A. A. McDonald as trustee. Notwithstanding his answers to the two complaints the defendant filed a formal demurrer, and on the argument here demurred ore tenus, on the ground that neither the original nor the amended complaint states a cause of action. The answers do not waive the demurrer ore terms; a party may demur at any stage of the trial for failure to allege a cause of action. Cole v. Wagner, 197 N. C., 692; Key v. Chair Co., 199 N. C., 794. The defendant first insists that the action is ostensibly founded on fraud or mutual mistake and that the allegations in the complaint with respect to either of these causes is fatally defective. If this position is maintainable the demurrer should he sustained, for unless the facts relied on to constitute fraud or mistake are distinctly alleged the courts cannot grant relief. Colt v. Kimball, 190 N. C., 169; Tull v. Harvey, *223 197 N. C., 329. But it is perfectly obvious that the defendant's position is not supported by the facts. Tbe plaintiff does not seek relief by the reformation or the rescission of the deeds of trust, and for this reason he did not allege mistake or fraud as the basis of- his action. True, in the original complaint he did aver his ignorance of the fact that the amount set out in the second note had been raised from $2,200 to $3,212; but this is not a definite allegation either of fraud or of mutual mistake. Furthermore, the amended complaint contains an allegation that W. J. Mason required {he plaintiff to execute the second note in the sum of $3,212, although the amount actually loaned the plaintiff was only $2,000. According to the first complaint the purpose of the action as constituted was to restrain a sale of the mortgaged property for usury; but after the property had been sold the plaintiff filed an amended complaint praying that he recover double the usury charged and paid. The second cause of demurrer is that neither complaint states an action for usury. "We do not agree, because on this point the amended complaint is specific: for $2,000 the plaintiff was charged $3,212. The circumstances are adequately minute and the allegations are sufficiently distinct. Churchill v. Turnage, 122 N. C., 426. There is still another reason for overruling the demurrer. When the plaintiff rested his case the parties stipulated that all allegations of usury should be withdrawn and that the controversy should be heard and determined upon the two issues heretofore set out — the amount of the plaintiff’s indebtedness and the market value of the land held by the defendant. The action was thus transformed into and treated as an action for an accounting as upon allegations for money had and received for the use of the plaintiff. For these reasons the demurrer is overruled; but the court inadvertently admitted incompetent evidence to the prejudice of the defendant. A. A. McDonald was Mason’s attorney. As a witness for the plaintiff he testified that he prepared the last note and deed of trust for Mason, the intestate; that this note “was for more than the old note and he advised Mason that the plaintiff might sue him for usury”; that in reply Mason said, “He would risk McNeill”; and that he saw no money pass. The defendant objected and excepted for the reason that the communication between the attorney and his client was privileged. When persons sustain toward each other certain confidential relations the law will neither compel nor allow one of them to violate the confidence by testifying without the consent of the other. 40 Cyc., 2352. Few rules of evidence are better settled or more firmly entrenched in public policy. The facts are not within any of the recognized exceptions. *224 Hughes v. Boone, 102 N. C., 137; J ones v. Marble Company, 137 N. C., 238. On this principle the testimony excepted to should have been excluded. Eliminating all claims for usury, as the parties agreed, we find evidence from which the jury might reasonably have inferred an admission by Mason that the face of the second note was greatly in excess of the amount of money loaned to the plaintiff. New trial.