Hood Ex Rel. North Carolina Bank & Trust Co. v. Pittman

Connor, J. Neither of the assignments of error on this appeal can be sustained. The demurrer was properly overruled. There was no error in the refusal of the trial court to allow plaintiffs’ motion for judgment as of nonsuit on defendants’ counterclaim. Neither Buncombe County v. Hood, Comr., 202 N. C., 792, 164 S. E., 370, nor Child v. Hood, Comr., 203 N. C., 648, 166 S. E., 809, is applicable to the instant case. In each of those cases the plaintiff had failed to allege in his complaint that he had made demand on the defendant for the payment or allowance of his claim before the commencement of the action. On demurrer to the complaint, it was held that such failure was fatal. The instant case was begun by the Commissioner of Banks. The defendants were not required to allege in their answer or to show at the trial that they had given notice to the plaintiffs of their claim for unliquidated damages, resulting from breach of contract, which included the execution of the note sued on, prior to the commencement of the action. See Sugg v. Greenville, 169 N. C., 606, 86 S. E., 695. The judgment is affirmed. No error. Devin, J., took no part in the consideration or decision of this case.