Coble v. Reap

PARKER, C.J. Plaintiff assigns as error the judgment sustaining the demurrer to his complaint that a justice of the peace has exclusive jurisdiction over the subject matter of the action, and dismissing the action. It is hornbook law in this jurisdiction that a demurrer admits, for the purpose of testing the sufficiency of the pleading, the truth of factual averments well stated and all relevant inferences of fact deducible therefrom, but it does not admit inferences or conclusions of law. 3 Strong’s N. C. Index, Pleadings, § 12. An objection that the court has no jurisdiction over the subject matter of the action may be raised by a demurrer to the complaint at any time, even in the Supreme Court on appeal. G.S. 1-127; [232] Williams v. Cooper, 222 N.C. 589, 24 S.E. 2d 484. A demurrer to a complaint on the ground that the court has no jurisdiction of the subject matter of the action will be sustained when, and only when, such defect appears upon the face of the complaint. Richardson v. Richardson, 261 N.C. 521, 135 S.E. 2d 532; 1 McIntosh, N. C. Practice and Procedure, 2d Ed., § 1184. From the judgment sustaining the demurrer to his complaint and dismissing his action, plaintiff has a right to appeal immediately to the Supreme Court. 1 McIntosh, N. C. Practice and Procedure, 2d Ed., § 1198. G.S. 7-63 reads in relevant part: “The superior court has original jurisdiction of all civil actions whereof exclusive original jurisdiction is not given to some other court.” G.S. 7-121 reads in relevant part: “Justices of the peace shall have exclusive original jurisdiction of all civil actions founded on contract, except — 1. Wherein the sum demanded, exclusive of interest, exceeds two hundred dollars.” G.S. 7-122 reads: “Justices of the peace shall have concurrent jurisdiction of civil actions not founded on contract, wherein the value of the property in controversy does not exceed fifty dollars.” G.S. 1-151 reads: “In the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.” The question presented to us is whether the cause of action alleged in the complaint can be fairly treated as based in tort. Mitchem v. Pasour, 173 N.C. 487, 92 S.E. 322, was an action commenced in the Superior Court by a landlord against his tenant, alleging the tenancy, the nonpayment of rent, and a conversion of the crops raised on the land, amounting to $134.16. In the Superior Court a judgment was entered dismissing the action for want of jurisdiction upon the ground that it was an action in contract and within the jurisdiction of a justice of the peace. The judgment dismissing the action was reversed. The Court in its opinion said: [233] See also Roebuck v. Short, 196 N.C. 61, 144 S.E. 515; Furniture Co. v. Clark, 191 N.C. 369, 131 S.E. 731. [232] “The uniform rule under our system of pleading is to construe the allegations liberally in favor of the pleader, with a view to substantial justice between the parties, and ‘when the action can be fairly treated as based either in contract or in tort, the courts, in favor of jurisdiction, will sustain the election made by the plaintiff;’ and further: ‘If the complaint is so worded that under the liberal procedure of The Code it could have been construed to be either an action on an express or implied contract, or either in tort or contract, or as a common-law action or one under the statute, the Court will sustain the jurisdiction.’” (Citing voluminous authority.) [233] In Asher v. Reizenstein, 105 N.C. 213, 10 S.E. 889, the Court held that the Superior Court had jurisdiction of an action for damages for the conversion of a horse where the amount claimed was $125. Defendant appellee contends: “Since the title to the property had never passed to the plaintiff, the title still being in the seller (defendant), there could be no wrongful conversion of the property. The action is upon contract and a Court of the Justice of the Peace has exclusive original jurisdiction.” With that contention we do not agree. In Shearin v. Indemnity Co., 267 N.C. 505, 148 S.E. 2d 560, it is said: “ ‘The effect of a part payment with respect to the transfer of title depends primarily on the terms of the contract and the intention of the parties, and also whether, as between the parties, anything still remains to be done with reference to the subject matter of the sale.’ 77 C.J.S., Sales, § 266(b). ‘Property may be delivered with the understanding that title thereto shall not pass until the performance of some condition, and such understanding or intention is given effect as between the parties.’ 46 Am. Jur., Sales, § 433, p. 603.” This is said in Teague v. Grocery Co., 175 N.C. 195, 95 S.E. 173: “On the present record, there are facts in evidence tending to show that this transaction was an executed contract of sale, having reference to designated and specific pieces of property, and if these facts should be accepted by the jury, it is well understood that present physical delivery of the property is not necessary to the transfer of the title but that the same passes according to the intent of the parties as expressed in the contract between them, and further, that, in the absence of specific agreement on the question, the presumption is that the title passed at the time of the purchase and without such delivery.” This is said in 46 Am. Jur., Sales, § 449: “Although the actual payment of the price or part thereof by the buyer in case of a sale of specified or identified chattels is a circumstance tending to show that it is the intention of the parties that the title pass, this circumstance is not controlling. The payment of the price or a part thereof does not necessarily operate to transfer the title to the buyer if anything further [234] remains to be done by the seller to the subject matter of the sale before delivery.” This is said in Void, The Law of Sales, 2d Ed., p. 144: “There may be an unconditional contract to sell identified goods' which are then in a deliverable state. If so, unless a different intention appears, the property interest passes to the buyer when the deal is made. “Neither mere postponement of delivery, nor mere postponement of payment, nor both, show a contrary intention.” The factual averments well stated in the complaint and all relevant inferences of fact deducible therefrom by a liberal construction are sufficient to show plaintiff purchased from defendant a planer, bits, and other miscellaneous parts appertaining thereto for an agreed price of $100; that plaintiff paid defendant the sum of $20 with a balance of $80 to be payable when this property was to be picked up by plaintiff a short time thereafter; that the fair market value of this property when defendant sold it to plaintiff was $150, though plaintiff purchased it from defendant for a bargain price of $100; that this was a sale of specified and identified goods which were then in a deliverable state; and that a reasonable inference to be drawn from these alleged facts is that upon the payment by plaintiff to defendant of the sum of $20 this transaction was an executed contract of sale, and that it was the intention of the parties that the title to this property should pass to the buyer upon the payment of $20 of the purchase price. The complaint alleges a willful conversion of this property by defendant when he sold it to a stranger for the price of $135, and prays that plaintiff recover from defendant the sum of $70 as actual damages. It is our opinion, and we so hold, that this action can be fairly treated as based on the tort of conversion, and that the Superior Court has jurisdiction. Defendant's second and last assignment of error is that the court erred in entering an order removing the case from Randolph County to Stanly County for trial. Plaintiff did not except to the order for change of venue. This assignment of error has no exception to support it, and is ineffectual to bring up for review the order for change of venue. Barnette v. Woody, 242 N.C. 424, 88 S.E. 2d 223; 1 Strong’s N. C. Index, Appeal and Error, § 19. In our opinion, the election of jurisdiction made by plaintiff should be upheld, and the judgment sustaining the demurrer and dismissing the action was erroneously entered, and is Reversed.