Freel v. Center, Inc.

HiggiNS, J. This appeal presents for review the order sustaining Bryson’s demurrer. A demurrer must be sustained if the challenged pleading (complaint or crosscomplaint) fails to allege each material fact necessary to constitute a cause of action. Ledwell v. Proctor, 221 N.C. 161, 19 S.E. 2d 234. Facts and not conclusions must be alleged. Broadway v. Asheboro, 250 N.C. 232, 108 S.E. 2d 441. The original defendant alleged it had a contract with Bryson to do the excavation and grading out of which this controversy arose. The agreement provided the “contractor shall use reasonable care in the protection of adjacent and abutting property.” “ . . . that while this answering defendant again alleges that the said grading done by the said Paul Bryson did in fact provide and leave proper and adequate lateral support” . . . but if it should be found otherwise, Bryson is primarily liable or at least jointly liable. The allegations as to Bry-son’s liability are conclusions not supported by allegations of fact. Violation of, or deviation from, the plans and specifications or from the terms of the grading contract are not alleged. Bryson’s demurrer to the cross action was properly sustained. Affirmed.