Kohler v. J. A. Jones Construction Co.

LAKE, J. The procedure prescribed in G.S. 1-568.1 through G.S. 1-568.27 is the only procedure by which a plaintiff can compel the officers of a defendant corporation to submit to his adverse examination of them prior to the trial of the action. G.S. 1-568.8. The plaintiff may procure an order for such examination of the officers of his corporate adversary, prior to the filing of his complaint, only by showing “that the examination is necessary to enable him prop [191] erly to prepare his complaint.” G.S. 1-568.9. In such affidavit the plaintiff must show “that, in order to prepare his complaint * * * it is necessary * * * to secure information from the person proposed to be examined about certain matters, which matters must be designated with reasonable particularity.” G.S. 1-568.10 (b) (2). The statute does not contemplate that compulsory examination of his adversary by one who has not filed a complaint is to be lightly allowed. This Court has said many times that the statute does not contemplate the issuance of a general permit for the plaintiff to embark upon an unrestricted “fishing expedition” through the records and recollections of his adversary. Griners’ & Shaw, Inc., v. Casualty Co., 255 N.C. 380, 121 S.E. 2d 572; Cates v. Finance Co., 244 N.C. 277, 93 S.E. 2d 145. See also McIntosh, N. C. Practice and Procedure, 2d ed, § 2285, supp. The statute plainly requires that the affidavit must not only describe, with reasonable particularity, the “fish” to be pursued, but must also show that its capture is necessary for the proper preparation of the complaint and that it may not otherwise be brought into the possession of the plaintiff. Under the former statute, which in this respect was not materially different from the present, this Court held that it was not sufficient for the affidavit to assert that the desired information is necessary to enable the applicant to prepare his pleading properly, it being required that the affidavit state facts upon which such claim of necessity is based. Washington v. Bus, Inc., 219 N.C. 856, 15 S.E. 2d 372; Gudger v. Robinson Brothers Contractors, 219 N.C. 251, 13 S.E. 2d 414; Bell v. Bank, 196 N.C. 233, 145 S.E. 241. Where the order grants a more extensive “fishing license” than the statute permits, this Court will modify the order so as to restrict it to the examination contemplated by the statute. See Cates v. Finance Co., supra. In the present case, it appears from the plaintiff’s application and affidavit that the action is brought to recover damages for an alleged breach of a written contract of employment. It further appears that the alleged breach consists in the refusal of the defendant to pay the compensation demanded by the plaintiff under the contract for the services rendered by him pursuant thereto. Obviously, the plaintiff does not need to examine officers of the defendant in order for the plaintiff to know what services were required of him by the contract, what services were rendered by him or what compensation was paid him for such services. The contract provides for the payment to the plaintiff of a fixed amount, plus “5% of all cash monies recovered on the Derbendi Kahn Dam Project.” The only information which the plaintiff could possibly need, in addition to that which he already has, in order properly to prepare his com [192] plaint, is the amount of “cash monies recovered” by the defendant on the specified project, the exact amount apparently being unknown to the plaintiff. By the express provision of the contract, the term “cash monies recovered” does not include the release or return to the defendant of its bank guarantees or the “removal of liquidated damages.” If the defendant did not recover all of such bank guarantees or it was subjected to some loss by way of “liquidated damages,” these would be deductions from, that is, partial defenses against, the claim of the plaintiff. In order for the plaintiff to be able properly to prepare his complaint, it is not necessary that he know the credits which the defendant may possibly assert against his claim. The information specified in paragraphs (f) and (g) of the aid-davit is “the total amount of all moneys * * * recovered by the defendant, in settlement of its various claims against the Government of Iraq, pertaining solely to the Derbendi Kahn Dam Project.” Without this information, the plaintiff could not compute the compensation he was entitled to receive under the alleged contract. Upon the facts stated in the affidavit, he is entitled to seek this necessary information from the officers of the defendant prior to the filing of his complaint. It appears from the affidavit of the plaintiff that he contends that under the alleged contract his compensation is to be computed by including within the terms “cash monies recovered” properties, other than money, recovered by the defendants from the Government of Iraq by reason of the Derbendi Kahn Dam Project. The amount of such properties, other than money, so recovered by the defendant is the information specified in paragraphs (h) and (i) of the affidavit. Without indicating any opinion as to the correctness of the plaintiff’s construction of the contract in this respect, we are of the opinion that the plaintiff is entitled to obtain this information, by the proposed adverse examination of the officers of the defendant, so that he may compute the amount of compensation which he contends he is entitled to recover under the contract. It is not shown in the affidavit that the plaintiff, in order to prepare his complaint in this action, requires the information set forth in paragraphs (a) to (d), inclusive, or in paragraphs (j) to (n) of the affidavit. The right, if any, of the plaintiff to examine the officers of the defendant with reference to any or all of these matters after both parties have filed their pleadings, pursuant to G.S. 1-568.9 (c), is not before us and we express no opinion with reference thereto. The order of the superior court is modified to permit the plaintiff to examine the specified officers of the defendant with reference to the matters set forth in subparagraphs (f) to (i), inclusive, of [193] paragraph 4 of the plaintiff’s affidavit filed 18 April 1966, and not otherwise. As thus modified, the order of the superior court is. affirmed. Modified and affirmed.