Montague v. . Lumpkins

AlleN, J. The complaint, which is verified, alleges an express promise to pay a definite sum of money, and under the authorities it was not irregular to enter judgment in favor of the plaintiffs by default final upon failure to answer. Hartman v. Warrior, 95 N. C., 177; Miller v. Smith, 169 N. C., 210. It is also equally well settled that a judgment by default will not be set aside unless facts are alleged which, if true, would establish a defense. “The court having jurisdiction of the subject and the parties, there is a presumption in favor of its judgment, and the burden of overcoming this presumption is with the party seeking to set aside the judgment. He must set forth facts showing prima facie a valid defense, and the validity of the defense is for the court and not with the party. Although there was irregularity in entering the judgment, yet unless the Court can now see reasonably that defendants had a good defense, or that they could not make a defense that would affect the judgment, why should it engage in the vain work of setting the judgment aside now and then be called upon soon thereafter to render just such another between the same parties ? To avoid this, the law requires that a prima facie valid defense must be set forth.” Jeffries v. Aaron, 120 N. C., 169, approved in Miller v. Smith, 169 N. C., and in other cases. Counsel do not contest the correctness of these principles, and they further admit that no defense has been shown unless the contract sued on required the plaintiffs to deliver three thousand pounds of tobacco, which has not been done.' The determination of the appeal turns then on the construction of the contract, which is a question of law for the Court (Young v. L. Co., *273 147 N. C., 26), and in the effort to ascertain the intent of the parties, which is the purpose of all construction, we must deal with the contract as an entirety. “In Paige on Contracts, sec. 1112, we find it stated: ‘Since the object of construction is to ascertain the intent of the parties, the contract must be considered as an entirety. The problem is not what the separate parts mean but what the contract means when considered as a whole.’ ” R. R. v. R. R., 147 N. C., 382. Following this principle and looking at the whole contract and not at separate parts, it seems to us clear that the plaintiffs sold their entire crop of tobacco, and that the defendants agreed to pay $1,000 if it weighed 3,000 pounds, but if less, only $900. Provision is made for the payment of, $600 “when tips is delivered,” $300 “when the next load,” “and then $100 when the last is delivered, if there is 3,000 pounds.” If this is not what the parties intended they have made a contract for the sale of a crop of tobacco, making no provision for the purchase price if it should not weigh 3,000 pounds, leaving the defendants in that event to pay nothing or upon a quantum valebat, which is contrary to the presumption that a written contract covers the different contingencies that may arise as far as they can be reasonably foreseen. We are therefore of opinion no defense has been shown and that the motion was properly denied. The allegations as to damage to the tobacco contained in the affidavit ' are too indefinite, and do not show that the plaintiffs are in any way responsible, and, besides, these allegations are in the affidavit of the attorney, who could only speak by hearsay, and not in the affidavit of either of the defendants. Affirmed.