Blackmore v. Winders
| Decision Date | 20 March 1907 |
| Citation | 144 N.C. 212,56 S.E. 874 |
| Parties | BLACKMORE et al. v. WINDERS et al. |
| Court | North Carolina Supreme Court |
An action on a bond given to stay summary proceedings against a tenant, conditioned on the payment by defendant of any judgment recovered by plaintiff in such proceedings, will not lie before recovery of judgment by plaintiff.
Under Revisal 1905. § 495, providing that 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, a complaint cannot be overthrown by a demurrer unless it be wholly insufficient.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 06-75, 108, 428, 555.]
A complaint in an action against a tenant for the recovery of rent, improperly blending also a cause of action against him and the sureties on his stay bond, given in summary proceedings against him, was not demurrable as to the cause of action for the rent.
An objection that an action on a bond was prematurely brought may be made for the first time in the Supreme Court, as such defect cannot be waived.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1083.]
Where an action against a tenant and the sureties on his stay bond in summary proceedings was prematurely brought before rendition of judgment for the rent, a joint demurrer should have been sustained as to the sureties.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 461-463.]
Appeal from Superior Court, Duplin County; E. B. Jones, Judge.
Action by Wentworth Blackmore and others against J. B. Winders and others. Judgment for plaintiffs, and defendants appeal. Judgment modified, and, as modified, affirmed.
The plaintiffs in their complaint allege that on May 13, 1905, they leased to W. E. Carlton the Hotel Northumberland, and the lot on which it stands, for the year 1906 at $480 as rent, payable in advance on January 1, 1906. The lessee, Carlton, assigned his interest to the defendant Winders, who entered under the plaintiffs, but failed to pay the rent on demand, and thereby became indebted to the plaintiffs in the sum of $480 and interest. The lease provided that, if the lessee should fail to perform any of its conditions for 10 days after notice by the lessor of such failure, the latter might re-enter without notice to quit. Winders took possession of the leased premises in December, 1905, and, having failed for 10 days, after due notice, to pay the rent, the plaintiffs brought summary proceedings before a jus tice of the peace to oust him. Judgment was given for the plaintiffs, and the defendants appealed to the superior court, and gave bond in the sum of $540 to stay the execution or writ of possession, which was conditioned as follows: "If the said Winders shall pay any judgment, which in this or any other action the plaintiffs may recover for the rent of said premises and for damages for the detention thereof, this obligation shall be void; otherwise it shall remain in full force and effect." The penalty of the bond was increased by order of the superior court to $650, and a second bond for that amount was given with a condition the same as the one in the first. C. F. Carroll was surety on the first bond and C. P. Carroll and W. L. Hill on the second. This suit was brought against J. B. Winders, C. F. Carroll, and W. L. Hill to recover the overdue rent and interest; the plaintiffs further alleging that by reason of making the stay bond the defendants became indebted to them in the sum of $480 (the amount of the rent), with interest, and they pray specially for a recovery of the penalty of the bond to be discharged by payment of the said debt and the costs, and further for general relief. The defendants demurred to the complaint. As the demurrer has been lost, we cannot state exactly its contents; but it would appear from the statements in the case and the admissions in the briefs of counsel that the defendants joined in the demurrer and assigned more than one ground. They demurred generally for the reason that the plaintiffs cannot maintain the action at all, and specially because an action will not lie on the stay bond until there has been a judgment for the plaintiffs in the summary proceeding, and a failure by the defendant Winders to pay the same, which is not alleged in the complaint. The court overruled the demurrer, and the defendants excepted and appealed.
Rountree & Carr, for appellants.
Stevens, Beasley & Weeks, for appellees.
WALKER, J. (after stating the case). There are only two questions to be considered in this case: First, whether the plaintiffs can sue upon the bond given by the defendants to stay execution in the ejectment proceedings before they have recovered judgment therein; and, second, whether, the demurrer being joint, it should have been overruled if a cause of action is stated in the complaint against any one of the defendants.
The condition of the bond is that it shall be void if the defendant Winders shall pay any judgment, which, in the summary proceedings in ejectment, or in any other action, may be recovered by the plaintiffs, and "otherwise"—that is, if he fails to pay the judgment—the bond shall be of full force and effect, or, in other words, it shall be enforceable against him and his sureties. It wouldseem to be clear from the very words of the condition that an action on the bond will not lie until there has been a judgment for the plaintiffs in the ejectment proceedings or in a separate action, for the bond distinctly provides that such a recovery shall be a condition precedent to liability, and this is in accordance with the words of the statute. The bond is intended merely as a security for such rents and damages as may be adjudged to the plaintiffs, and not for those which they fail to allege and show that they have recovered. The suability of the defendants in respect to the bond is therefore contingent, and depends upon the prior recovery, which must be shown by proper averment and proof. The precise question now presented seems to have been decided adversely to the plaintiffs' contention in Robeson v. Lewis, 73 N. C. 107. See, also, McMinn v. Patton, 92 N. C. 371, 376; Hazen v. Culbertson, 10 Watts (Pa.) 393. The provision of the statute as to the recovery of rent and damages in a suit other than the summary proceedings was inserted, no doubt, because the amount of the rent and damages might often exceed the limit of the justice's jurisdiction, and so counsel suggested in the argument. As the plaintiffs do not allege that the event has happened which fixes liability on the bond, this action, as to the obligors, is premature.
As to the second question: The uniform rule prevailing under our present system is that, for the purpose of ascertaining the meaning and determining the effect of a pleading, its allegations shall be liberally construed, with a view to substantial justice between the parties. Revisal 1905, | 495. This does not mean that a pleading shall be construed to say what it does not, but that if it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with technical accuracy or precision will not be so taken against him as to deprive him of it Buie v. Brown, 104 N. C. 335, 10 S. E. 465. As a corollary of this rule, therefore, it may be said that a complaint cannot be overthrown by a demurrer unless it be wholly insufficient If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificial-ly it may have been drawn, or however uncertain, defective, or redundant may be its statements; for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient. 4 Enc. Pi. & Pr. p. 74 et seq.; Stokes v. Taylor, 104 N. C. 394, 10 S. E. 506; McEachin v. Stewart, 106 N. C. 336, 11 S. E. 274; Halstead v....
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