Yonge v. New York Life Insurance

ClabicsoN, J. The action is for breach of contract, but it appears from the record that the agreement was made with plaintiff and her husband, Karyll Yonge. The death of the husband does not revoke the contract nor do the rights under the contract survive to the plaintiff. See Burch v. Bush, 181 N. C., 125. The record discloses that Clara L. Yonge and her husband, Karyll Yonge, both executed the note which was secured by deed of trust on a lot which they held by the entireties. The loan contract made by defendant was to both husband and wife and the breach concerns both. The husband is dead and the land goes to plaintiff as survivor, the husband and wife having an estate by the entireties, the loan made to both. The personal representative of Karyll Yonge is a necessary party. “If it appears upon the complaint that there is a defect of parties plaintiff or defendant, objection is taken by demurrer, and for such defect not so appearing objection is taken by answer.” McIntosh N. C. Prac. & Proc., 451; Silver Valley Mining Co. v. Baltimore Smelting Co., 99 N. C., 445; Kornegay v. Farmers’, etc., Steamboat Co., 107 N. C., 115, 117; Styers v. Alspaugh, 118 N. C., 631; Lanier v. Pullman Co., 180 N. C., 406. In Monger v. Lutterloh, 195 N. C., at p. 279, citing numerous authorities, it is said: “The rule is too firmly embedded in our jurisprudence to need repeating, that ordinarily the amount of loss which a party to a contract would naturally and probably suffer from its nonperformance, and which was reasonably within the minds of the parties at the time of its making, including such special, damages as may be said to arise directly from circumstances existent to the knowledge of the'parties, and with reference to which the contract was made, is the measure of damages for the breach of said contract. Causey v. Davis, 185 N. C., 155, 116 S. E., 401. Such was the rule laid down in the celebrated case of Hadley v. Baxendale, 9 Exch., 341, and this case has been consistently followed by us.” *18 We think that the allegations of damage, to comply with the above rule is incorrect, but plaintiff can move to amend, which is addressed to the discretion of the court. Ordinarily, when the pleading is sufficient but not definite and certain, motion can be made to make the allegations made definite and certain. O. S., 537. The court has a right ex mero moiu to direct that the pleadings shall be more explicit. Buie v. Brown, 104 N. C., 335; Martin v. Goode, 111 N. C., 288; Allen v. R. R., 120 N. C., 548; Barbee v. Davis, 187 N. C., 78; Power Co. v. Elizabeth City, 188 N. C., 278. For the reasons given, the demurrer should have been sustained by the court below. Reversed. AdaMs, OoNNOk, and BeogdeN, JJ., concurring in result.