Horney v. . Mills

Connor, J. Plaintiff seeks to recover, in tbis action, upon a contract, in writing, executed by plaintiff and defendant, dated 11 May, 1923. Summons was issued on 6 June, 1923. Plaintiff filed bis duly verified complaint on 8 June, 1923. Tbe summons, together witb a copy of tbe verified complaint was duly served on defendant, on 9 June, 1923. Defendant filed bis answer to tbe complaint on 12 June, 1923, in wbicb be denied eacb and all tbe material allegations of tbe complaint. Tbis answer was not verified. At February Term, 1925, plaintiff moved for judgment upon bis verified complaint. Tbe answer bad not been verified; no motion was made by defendant for leave to verify tbe same. Tbe Court being of opinion tbat, upon tbe verified complaint, no verified answer thereto having been filed by defendant, plaintiff was entitled to recover of defendant, rendered judgment in accordance witb tbe prayer of tbe complaint. No exception was taken by defendant to tbe judgment at time same was rendered. It does not appear tbat defendant was present or represented by attorneys when judgment was rendered. Within ten days after its rendition, defendant, through bis attorneys, caused bis appeal from tbe judgment to be entered by tbe clerk on tbe judgment docket, and notice thereof to be served on plaintiff; C. S., 641 and 642. Upon bis appeal, in tbis Court, defendant contends tbat there was error in rendering judgment upon tbe complaint (1) for tbat no cause of action is alleged therein and (2) for tbat a delay in moving for judgment by default for want of verified answer from tbe date of filing tbe answer, 12 June, 1923, to tbe date of tbe motion for judgment, February Term, 1925, was, as a matter of law, a waiver of tbe right to have tbe answer stricken out, because same was not verified when filed, and also of tbe right to have judgment entered by default. Defendant’s first contention is, in effect, a demurrer .ore tenus to tbe complaint, for tbat same does not state facts sufficient to constitute a cause of action. Tbis contention is made for tbe first time, upon appeal, in tbis Court, and must be considered under C. S., 518. It has not been waived by failure of defendant to take tbe objection either by demurrer or answer. If an objection to a complaint, other than tbat tbe court has no jurisdiction, or tbat tbe complaint does not state facts sufficient to constitute a cause of action, is not made by demurrer, or by answer, it is waived. Objections upon either of these grounds are not waived, even by tbe filing of an answer denying tbe allegations of tbe complaint. “When a complaint does not state a cause of action, tbe defect is not *728 waived by answering, and defendant may demur ore terms, and tbe Supreme Court may take notice of,tbe insufficiency, ex mero motu.” Garrison v. Williams, 150 N. C., 674. Upon this contention it is immaterial whether the answer filed is sufficient or not. The demurrer ore ienus, however, admits the truth of the facts alleged in the complaint. Hayman v. Davis, 182 N. C., 563. If the facts alleged in the complaint, admitted to be true, upon consideration of the demurrer, and construed liberally, with every reasonable intendment and presumption in favor of plaintiff, constitute a cause of action, in favor of plaintiff and against defendant, the demurrer must be overruled; otherwise the demurrer must be sustained. The contract upon which this action is brought is referred to and made a part of the complaint. It is in writing, signed by the parties, and a copy thereof is attached to the complaint. The rights and duties of the parties thereto must be determined by a construction of the contract. This is a matter of law for the court, and the court, in determining the mutual rights and duties of plaintiff and defendant, under the contract, is not bound by the construction of the contract, adopted by plaintiff and set out in his complaint, as a basis for a cause of action against defendant. Only facts alleged in the complaint are to be taken as true in considering the question presented by defendant as to whether or not these facts are sufficient to constitute a cause of action in favor of plaintiff and against defendant, arising out of the contract. Plaintiff’s conclusions of law upon the facts admitted by the demurrer ore tenus are not admitted by defendant or binding upon the court; Carpenter v. Hanes, 167 N. C., 552. Plaintiff’s construction of the contract as providing not only for the sale of the-land by plaintiff for defendant, but also for its subdivision, etc., into lots by plaintiff, and for the payment by defendant to plaintiff of commissions for the sale and also of $600 for the subdivision, etc., upon an examination of the contract in its entirety is not sustained. The primary purpose of the contract, as disclosed by such examination, is the sale of thé land by plaintiff for defendant and compensation by defendant to plaintiff for the full and final performance of the contract. Commissions are due and payable only at the close of the sale. It appears from the complaint that no sale was made, and, therefore, no commissions were due by defendant to plaintiff. The sum of $600 was to be paid in addition to commissions to- help pay the expenses of the sale and the preparation of the land for the sale. Under the terms of the contract, this sum was due and payable only in the event that the land was sold. Plaintiff alleges generally that he complied with said contract, but this is a conclusion of law. It appears by express allegations in the *729 complaint that plaintiff failed to get purchasers and bidders satisfactory to defendant. It is not alleged that tbe land brought at the sale $3,600. It is expressly provided in the contract that if the land failed to bring a total of $3,600, defendant should be under no obligation to confirm the sale. Defendant’s contention that the facts alleged in the complaint are not sufficient to constitute a cause of action must be sustained. We cannot, however, sustain defendant’s second contention that plaintiff, by delaying to move for judgment by default for want of a verified answer from the date of the filing of the answer to the date of the hearing of the motion, waived his rights. When a complaint, duly verified, is filed, the answer thereto must also be verified. C. S., 528. An unverified answer to a complaint, duly verified, is not sufficient to raise issues for trial by jury. Plaintiff, who has filed his complaint, is entitled to judgment, in accordance with the facts alleged, if no answer denying the allegations is filed by defendant within the time allowed by statute, and if the complaint is duly verified, an unverified answer is, under the statute, no answer. Delay in moving for judgment upon the complaint for want of an answer does not, as a matter of law, waive plaintiff’s rights. Such delay may properly be considered by the court in passing upon defendant’s motion for leave to- file an answer or to verify an answer previously filed, such motion being addressed to the discretion of the court, the exercise of which is not reviewable by this Court; Wilmington v. McDonald, 133 N. C., 548; Church v. Church, 158 N. C., 564. C. S., 536. For the reason stated in this opinion, the judgment must be Reversed.