Home Improvement Financing Corp. v. Cuthrell

WinboRNe, C. J. Appellants set out in the record of case on appeal fifteen assignments of error based upon nineteen exceptions. Some of them merit special consideration which the Court now gives. It is contended that the court erred in overruling plaintiff’s demurrer to paragraphs 8, 9, 10, 11, 12, 13, 14, 15 and 16 of the answer as saved by Exception 1. Turning to record of demurrer of plaintiff and the additional defendant, it appears that (1) they “demur to the defense or counterclaim set out in paragraphs Eight through Fifteen of the answer for * * * that the answer fails to show that the plaintiff had actual knowledge of defect of title of Nationwide Construction Company to said note.” (2) “The new matter contained in paragraph sixteen of the answer of the defendants, FI. M. Cuthrell and Mattie M. Cuthrell, and for cause of demurrer say that the answer on its face shows that a loan was not made on which a usurious rate of interest was charged or paid, and that the answer fails to show that the defendants have tendered in good faith any payment toward the principal sum due under the purchase contract.” And (3) “The defense or counterclaim set out in paragraph seventeen of the answer and for cause of demurrer say that the defense set out is without merit in that the statute does not invalidate a deed of trust executed in the manner set out in the answer.” (Numbering supplied) In this connection the plaintiff may demur to the defendant’s answer if he thinks there is a defect which is subject to demurrer. G.S. 1-140, G.S. 1-141. Indeed plaintiff may demur to one. or more de78 fensés pleaded- in answer, but he may not divide a single affirmative defense- aind'demur separately to paragraphs or sentence’s removed from context. Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384. Looking to the pleading; challenged by the demurrer it is seen that it is based upon fraud. In such case it is not sufficient to allege this in*a general way; but the particular facts constituting such fraud should be alleged with sufficient fullness and accuracy to apprise the opponent of What he is' called on to answer. And in actual' fraud the pleading must allege the essentials. of the cause of action, which are “the" representation, its falsity, scienter, deception, and injury.-The representation must be definite and specific, materially- false, made with" knowledge of' its falsity -or in culpable ignorance of' fits truth, made with fraudulent intent, must be reasonably relied on by the other party and he must be deceived and caused to suffer loss.” McIntosh’s N. C. P. & P, Yol. 1, Sec. 990; City of New Bern v. White, decided contemporaneously herewith, and cases cited therein. Now testing the sufficiency of the pleading to withstand the demurrer"' filed; this Court is of opinion that the lulling of the court below is correct. Consequently the ruling on the motion of plaintiff and additional''defendant to strike the pleading to which .demufrqr was. filed foiipws as a matter of course..See McIntosh N. C. P '& P, Vol. 1, Sec. 1261. Hence appellant’s second assignment of error is without; avail. , ¡Other .‘assignments of error -haye been duly, considered, and'in-them prejudicial, error is .not. made -to appear. Therefore in .the, judgment from .which-appeal is taken, there is ... ... No error,.- Higgins, J., not sitting.