Bowling v. Fidelity Bank

Clarkson, J. The first question involved: Was his Honor below correct in sustaining the defendant’s demurrer ore ienus to the complaint upon the ground that said complaint did not state facts sufficient to constitute a cause of action? We think not. We think that the complaint alleges a contract made by defendant with plaintiff and a breach, in reference to refinancing the lien held by defendant on the 22.95 acres of land owned by plaintiff. The contract also sets forth other conditions. The plaintiff alleges that “he has always been ready and willing to carry out the refinancing agreement then and there entered into.” Plaintiff alleges “damages incurred by the loss of the 22.95-acre tract of property.” The defendant demurred ore terms to the complaint “on the ground that the complaint does not state facts sufficient to constitute a cause of action; in that it is alleged in the complaint that the defendant entered into a contract to purchase the property therein referred to, to wit, 22.95 acres of land, at a sale to be made by G. T. McArthur, trustee, in the deed of trust herein referred to, and to convey it to a son of the plaintiff, and to take from him his note secured by a deed of trust upon said 22.95 acres, said note to bear the same date as said deed of trust and to be signed by the plaintiff, his brother, B. P. Bowling, and his son, and that it therefore appeared from the face of the complaint that if there was any breach by the defendant of a contract to sell said land it was a breach of contract to sell it to a son of the plaintiff, and not to the plaintiff. In the second part of the demurrer the grounds in support of the statement that the complaint did not state facts sufficient to constitute a cause of action are that the complaint failed to allege the amount of money to be represented by the note which it was alleged that the defendant agreed it would take from a son of the plaintiff, and that it failed to allege any maturity date or rate of interest to be paid thereon, and that it failed to allege that if the son of the plaintiff should receive a deed from the defendant for said land and execute said note, that either he or the other makers or endorsers of said note would or could pay it when it became due, and that therefore there was no certainty that the plaintiff’s son would have been able to retain said land and keep it, because if the note was not paid the land would be sold pursuant to the terms of the deed of trust to satisfy the indebtedness.” In McIntosh N. O. Practice & Procedure in Civil Cases, p. 361, it is said: “The failure to state a cause of action, to be objected to by demurrer ore tenus, must be a defective cause of action, and not a defective statement of a good cause of action.” *469 In Blackmore v. Winders, 144 N. C., 212 (215-16), we find: “It may be said that a complaint cannot be overthrown by a demurrer unless it be wholly insufficient. I£ in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient.” N. C. Code, 1935 (Michie), sec. 535. In re Trust Co., 207 N. C., 802. "We do not see how defendant is concerned about the property under the contract being conveyed to plaintiff’s son. Plaintiff alleges that defendant agreed in the refinancing arrangement to convey to his son, and breached its agreement. Plaintiff was ready and willing to carry out his part of the agreement. Defendant cannot call to its aid its own alleged breach. N.-C. Code, 1935 (Michie), part see. 537, is as follows: “When the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not present, the court may require the pleading to be made definite and certain by amendment.” The matter has been settled in this jurisdiction. In Allen v. Railway Co., 120 N. C., 548 (550), it is thus stated: “When there is a defective cause of action, although in due form, the plaintiff cannot recover unless the court in its discretion, on reasonable terms, allows an amendment. When a good cause of action is set out, but defective in form, the court may require the pleadings to be made definite and certain by amendment. The Code, secs. 259 and 261 (N. C. Code, 1935 [Michie], secs. 534 and 537). Eor this purpose, however, the objector must move in apt time. It is too late after demurrer or answer. Stokes v. Taylor, 104 N. C., 394. This motion is addressed to the discretion of the court. Conley v. Railroad, 109 N. C., 692; Smith v. Summerfield, 108 N. C., 284. The court may ex mero motu direct the pleadings to be reformed. Buie v. Brown, 104 N. C., 335.” Ins. Co. v. Griffin, 200 N. C., 251 (255). The second question involved: Was his Honor correct in sustaining the defendant’s plea in bar of an alleged similar action pending set up in the defendant’s answer? We think not. In Bank v. Broadhurst, 197 N. C., 365 (369-70), quoting from 1 C. J-, p. 66, par. 83, we find: “ Tour leading tests have judicial sanction in determining whether or not the causes of action are the same for the purpose of abatement by reason of the pendency of a prior action: (1) “Clearly, in order to hold the subsequent suit to be necessary, it is an *470 essential prerequisite that the judgment in the former or prior action should be conclusive between the parties and operate as a bar to the second.” (Williams v. Gaston, 148 Ala., 214, 216, 42 S., 552.) In other words, if a final judgment in the former suit would support a plea of res adjudicata in the subsequent suit, the suits were identical for this purpose; otherwise, they are not. (2) Many cases apply the following test: Was full and adequate relief obtainable in the prior action? If so, the second action was improperly brought and is abatable; if not, the objection will be overruled. This, as we shall see, is a generally recognized rule. (3) A test having the support of some of the cases is this: Will the same evidence support both actions? (4) A fourth test supported by English and Canadian authorities is: Could the bill in the second suit have been procured by a fair amendment of the first V ” E. H. Bowling owned two tracts of land — total acreage 32.6. The present controversy concerns one, 22.95 acres. J. H. Bowen instituted an action against defendant for breach of contract in reference to the mill site, 9.65 acres, and plaintiff intervened in that cause. Bowen v. Barde, ante, 140. We see no such identity between the two actions as to base a plea of abatement. Eor the reasons given, the judgment of the court below is Reversed.