Davis v. Ely Et At
| Citation | 100 N.C. 283,5 S.E. 239 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 27 February 1888 |
| Parties | Davis v. Ely et at. |
ArpEAL—When Lies—Premature Voluntary Nonsuit.
Upon trial of an action, brought to reform a written contract into harmony with a preceding parol contract, defendant moved to dismiss because the complaint stated no cause of action. The motion was overruled, the court holding that the complaint stated a cause of action for rescission of contract, but not for reformation and specific enforcement; whereupon plaintiff took nonsuit and appealed. Held that, as there was no ruling by the court as to reformation and specific enforcement of the contract, its intimation was open to reconsideration, and an appeal therefrom was error.
Appeal from superior court, Camden county; Graves, Judge.
John P. Davis, plaintiff, brought this suit against Timothy Ely et al. Acting upon an intimation of the court, plaintiff suffered a nonsuit and appealed.
Grandy & Aydlett, for plaintiff. Harvey Terry, for defendants.
This action is instituted to reform and enforce the specific performance of a contract, the terms of which are alleged to have been arranged and agreed on between the defendants and the father of the plaintiff, acting on his behalf, verbally, and which contract, by means of the false and fraudulent representations made by the defendant Terry, acting for his associates, as to the provisions of the oral agreement, was put in its present form as shown in the accompanying exhibit. The variation, it is asserted, consists in substituting for the "Hall Tract" of land, containing 3, 000 acres, which the plaintiff was to have in addition to the share to be allotted in the division of the "Great Park Estate, " an undefined portion of 1, 300 acres adjoining that share, the correction and amendment required being to bring the written in harmony with the parol contract.
It is only necessary to say that the answers of the defendants deny the imputations, and enter into an explanation of the facts of the transaction inconsistent with, the charges in the complaint. The complaint, after a statement of the facts that constitute the cause of action, concludes with no demand for specific relief, except for costs, adding, "and for such other and further relief as to the court may seem just." As the essence of a bill in equity for relief lies in the recital of facts and the demand for redress, it ought to be shown therein what is demanded, and, under a prayer for general relief, if that specified cannot be given, some other may be consistent with the structure and objects of the bill. Whitfield v. Cates, 6 Jones, Eq. 136. The office of a complaint, which, under the Code takes the place of the bill, is to set out the facts out of which comes the cause of action; and as the summons, which begins the suit, notifies the party on whom it is served, to answer the charges to be preferred against him, "or the plaintiff will apply to the court for the relief demanded in the complaint, " (Code § 213,) most obviously this becomes a material part of the pleading. But, waiving this defect which we do not declare to be fatal, we proceed to the consideration of the case presented in the appeal. The record shows that after the jury had been impaneled and "the complaint and answer read, "as we understand, that the matters in issue might be seen from the conflicting allegations, (for no issues in form appear in the record,) the defendants moved to dismiss the action for an insufficient statement of facts in the complaint. This motion was denied, the court at the same time remarking...
To continue reading
Request your trial
-
Williams v. Bailey
...what remedy ought to be granted." Johnson v. Loftin, 111 N.C. 319, 16 S.E. 179; Adams v. Hayes, 120 N.C. 383, 27 S.E. 47; Davis v. Ely, 100 N.C. 283, 5 S.E. 239; Simmons v. Allison, 118 N.C. 763, 24 S.E. Sams v. Price, 119 N.C. 572, 26 S.E. 170; Parker v. R. R., 119 N.C. 677, 25 S.E. 722; G......
-
Penn-Allen Cement Co., Inc. v. Phillips & Sutherland
... ... appeals will not be allowed when the subject-matter could be ... afterwards considered and error corrected without detriment ... to the appellant. But this rule does not apply to ... interlocutory orders, the granting or refusal of which may ... produce present injury or loss. Davis v. Ely, 100 ... N.C. 283, 5 S.E. 239; Guilford v. Georgia, 109 N.C. 310, 13 ... S.E. 861." ... The ... later decisions have all followed this rule, among them, ... Shelby v. Railroad, 147 N.C. 537, 61 S.E. 377; ... Moore v. Lumber Co., 150 N.C. 261, 63 S.E. 953; ... Smith ... ...
-
Penn-allen Cement Co. Inc v. Sutherland, (No. 413.)
...But this rule does not apply to interlocutory orders, the granting or refusal of which may produce present injury or loss. Davis v. Ely, 100 N. C. 283, 5 S. E. 239; Guilford v. Georgia, 109 N. C. 310, 13 S. E. 861." The later decisions have all followed this rule, among them, Shelby v. Rail......
-
Allen v. Atlanta & Charlotte Air Line Ry. Co.
...the ruling of the court strikes at the root of the case and precludes a recovery by the plaintiff.' This case is not like Davis v. Ely, 100 N.C. 283, 5 S.E. 239, or Hayes v. [Atlanta C. Air Line] Railroad, supra, which were decided upon special facts and circumstances. The ruling of the cou......