Chason v. Marley
| Decision Date | 15 December 1943 |
| Docket Number | 671. |
| Citation | 28 S.E.2d 223,223 N.C. 738 |
| Parties | CHASON v. MARLEY et al. |
| Court | North Carolina Supreme Court |
Civil action for specific performance of a contract to convey land heard on motion to strike allegations in the complaint.
In allegations (1) to (5), inclusive, plaintiff alleges the material, essential, and ultimate facts upon which his cause of action is based. In paragraph (6) he alleges that the defendants accepted payments upon the contract of sale 'and executed and delivered to this plaintiff receipts and memorandums, in writing, with respect thereto as follows:' He then lists in detail twenty-three receipts for 'principal and interest.'
Having alleged in paragraph (5) that he has 'paid to the defendants upon the installments upon the aforesaid purchase price of the said lands, together with the interest thereon and has likewise paid to the defendants the taxes annually levied and assessed against the same, and insurance premiums upon the insurance upon the buildings situated thereon, as will more fully appear hereafter, and has at all times promptly and fully complied with and carried out the terms of the aforesaid contract and agreement on his part,' in paragraphs (7) to (15), inclusive, he undertakes to allege in detail the checks paid on installments, insurance premiums and taxes paid and other evidence relied upon by him to support the allegation that he has in all respects complied with said contract.
In paragraph (17) he alleges his legal right to a decree of specific performance.
The defendants, after answering, appeared and moved to strike paragraphs (6) to (15), inclusive, and paragraph (17). The motion to strike was allowed, and plaintiff excepted and appealed.
F D. Hackett, Jr., and Varser, McIntyre & Henry, all of Lumberton, for plaintiff, appellant.
Robert H. Dye, of Fayetteville, for defendants, appellees.
The oft-repeated pertinent provision of C.S. § 506 is: 'The complaint must contain * * * (2) a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition; and each material allegation must be distinctly numbered.'
This means that the material, essential, and ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff should allege all the material facts, the ultimate facts which constitute the cause of action--but not the evidence to prove them. McIntosh P. & P. 389, sec. 379; Winders v. Hill, 141 N.C. 694, 54 S.E. 440; Sams v. Price, 119 N.C. 572, 26 S.E. 170; Revis v. Asheville, 207 N.C. 237, 176 S.E. 738; Tar Heel Hosiery Mill v. Durham Hosiery Mills, 198 N.C. 596, 152 S.E. 794. With few exceptions, only the facts to which the pertinent legal or equitable principles of law are to be applied are to be stated in the complaint. McIntosh P. & P., 388, sec. 379; Moore v. Hobbs, 79 N.C. 535; Webb v. Hicks, 116 N.C. 598, 21 S.E. 672; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946; Crump v. Mims, 64 N.C. 767; Life Insurance Co. of Virginia v. Smathers, 211 N.C. 373, 190 S.E. 484; Woodley v. Combs, 210 N.C. 482, 187 S.E. 762; Poovey v. Hickory, 210 N.C. 630, 188 S.E. 78.
When a complaint is drawn in accord with the staute and states a cause of action, evidence of the facts alleged is admissible. It does not follow that it is either necessary or proper to allege any and every fact evidence of which will be competent at the hearing.
Measured by these principles of law, we are constrained to hold that the complaint contains many immaterial and redundant allegations which were properly stricken.
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