Gorman v. . Bellamy

•Smith, C. J. The issue raised upon the demurrer is alone presented for decision upon the appeal. We are of opinion if the matter specified in the demurrer does in law constitute a condition precedent and essential to the recovery, it is sufficiently averred in the general terms used in the complaint, to-wit, that the work for which compensation is de *499 manded was done “in pursuance of the liberty and privilege granted to them (the lessees) m s aid lease as above set forth,” within the requirements of section 93 of the code, and the demurrer is not sustained in this regard. These words clearly import the source from which authority to make the improvements is derived, and the restrictions imposed upon it. If the buildings were erected “ in pursuance of the liberty ” given in the covenant, none of its directions could have been disregarded and the avenue and entrance into the rear must have been left open and undisturbed. If these were obstructed, and this provision is a limitation upon the power conferred, it is not true that' the lessees exercised it in conformity with the terms of the covenant. The present practice does not recognize the necessities of the system of pleading which it succeeds, and directs the court “ in every stage of action ” to “disregard any error or' defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.” C. C. P., § 135. “ The subtle science of pleading heretofore in use,” remarks Bynum, J,, delivering the opinion in Moore v. Edmiston, 70 N. C., 510, “ is not merely relaxed, but abolished by the code, and the forms of pleading in civil actions, and the rules by which their sufficiency is to be determined are those prescribed in the code. C. C. P., § 91. The new system, thus inaugurated, is such, that few if any of the ancient rules are now applicable. All that is required of the plaintiff is a plain and concise statement of the facts constituting the cause of action; and of the defendant, a general or specific denial of each material allegation of the complaint •controverted in the answer.” Jones v. Mial, ante, 252. But we do not wish to be understood as conceding that th preservation of the open way to the rear is so annexed to the license to build and improve as to constitute a con-4ition precedent, and disable the lessees from seeking any 'Compensation for their outlay in putting up additions to *500 the buildings then upon the lot. The covenant entitles them to claim, not full reimbursement of moneys expended in making the improvements, but their value to be ascertained in the mode appointed, and as the contract seems to contemplate, reduced by the injury to the premises resulting from erecting them. The clause in question seems rather to be a proviso than a condition of defeasance which need not be stated in the declaration, for this, says Mr. Chitty, ought to.come from the other side. Railroad v. Robeson, 5 Ired., 391; 1 Saunders, 334, note 2. The inclination of the courts is to relax the stringent rules of the common law which allows no recovery upon a special unperformed contract itself, nor for the value of the work done because the special excludes an implied contract to pay. In such case if the party has derived any benefit from the labor done,it would be unjust to allow him to retain that without paying anything. “ The law therefore implies a promise,” say the court, “to pay such remuneration as the benefit conferred is really worth. Dumott v. Jones, 23 How., (U. S.,) 220; Monroe v. Phelps, 8 Ellis & Black, 739. But for the reason that a compliance with all the requirements of the covenant accompanying the grant of license is sufficiently alleged in the complaint, the demurrer resting on false premises must be overruled, and the judgment of the court below affirmed. As there are other defendants who have answered and the issues as to them are still open, the judgment of this court will be certified to the end that further proceedings be had in the cause in the superior court of New Hanover, and it is so ordered. No error. Affirmed.