Bryan v. Acme Manufacturing Co.

Schenck, J. The allegation in the reply that the purported order or contract for cotton fertilizer was procured by fraud was not demurrable upon the ground that it was inconsistent with the complaint or a departure from the original cause of action alleged. In Houser v. Bonsal, 149 N. C., 51, wherein the defense was set up that a judgment had been entered and paid and the reply of the plaintiff assailed the procurement of the judgment and the settlement thereof upon the ground of fraud, Holee, J., at page 57, says: “. . . Under our present system, where courts are empowered to administer full relief in one and the same action, when all the parties to be affected by the decree are before the court, and a judgment is set up in bar and directly assailed in the proceeding for fraud, this is a direct and proper proceeding to determine its validity.” If a judgment set up in an answer as a defense may be *722 assailed for fraud when all the parties affected thereby are before the court, by the same token, an order or contract so set up, when all the parties thereto are in court, may be so assailed. The allegation in the reply that the fertilizer furnished the plaintiff by the defendant was tagged tobacco fertilizer, when it was in truth cotton fertilizer, is “not inconsistent with the complaint,” and tends to constitute “a defense to the new matter in the answer,” and amplifies the original theory of the complaint, namely, that cotton fertilizer, a commodity valueless to the plaintiff, was furnished when tobacco fertilizer was ordered, and known by the defendant to have been ordered. McIntosh’s N. O. Prac. and Proc., par. 479, pp. 510-11. Winstead v. Acme Manufacturing Co., 207 N. C., 110, is differentiated from the instant case in that in the former case the court in its discretion denied the motion of the plaintiff to amend his complaint so as to allege that the order or contract was fraudulently filled in, whereas in the latter case the plaintiff filed a reply in which such fraud is definitely alleged as “a defense to the new matter in the answer.” The order permitting its filing was general and placed no limitations upon the scope of the reply except those imposed by the statute, C. S., 525, and the reply is within the provisions of the statute. The judgment sustaining the demurrer is Reversed.