O. G. Parsley & Co. v. Nicholson
| Decision Date | 31 January 1871 |
| Citation | 65 N.C. 207 |
| Court | North Carolina Supreme Court |
| Parties | O. G. PARSLEY & CO. v. THOMAS W. NICHOLSON and another. |
The rules of pleading, at common law, have not been abrogated by the C. C. P. The essential principles still remain, and have only been modified as to technicalities and matters of form. The effect of pleading both in the old and new system is to produce proper issues of law or fact, so that justice may be administered between parties litigant with regularity and certainty.
Every material allegation of a complaint which is denied by the answer must be sustained in substance by proofs; and though a plaintiff may prove a cause of action, he cannot recover upon it unless it be alleged substantially in his complaint.
This was a civil action brought in EDGECOMBE Superior Court and tried at the Spring Term, 1870, before his Honor, Judge Jones.
The complaint alleged that the defendants on the 3rd of December, 1867, received from the plaintiffs nine bales of cotton, on which they, the plaintiffs, had a lien for $311, and held as their property for the payment of that amount, and that the defendants promised to ship and sell it, and out of the proceeds pay the amount of their said lien.
It alleged further that the defendants did ship and sell the cotton, and, though they received more than the amount of the plaintiffs' lien, they had refused upon request to pay it or any part of it to the plaintiffs.
The answer denied that the defendants received, at the time specified or any other time, nine bales of cotton from the plaintiffs, but alleged that about the time specified they had bought from one Collin McNair nine bales of cotton and that they were afterwards informed by an agent of the plaintiffs that they had a lien upon it for $311. The answer further denied that the defendants promised to ship and sell the cotton and pay any part of the proceeds to the plaintiffs, though it admitted that they had sold the cotton and had received therefor a sum greater than the amount of the plaintiffs' lien, and had refused to pay it or any part of it to the plaintiffs.
On the trial, the allegations of the complaint were sworn to by one William M. Pippin, the agent of the plaintiffs in the transaction.
On the part of the defendants, Mr. Williams one of them, testified that McNair had sold them nine bales of cotton, upon which they paid him $160; that the witness, Pippin, afterwards came to their store and asked if they had not bought cotton of McNair, to which they replied that they had. He then said that he had a lien on it, that McNair had told him that he had sold the cotton to the defendants, and that he had said that he should not trouble it, but that he had been subsequently advised that it would be bad faith to his employers, O. G. Parsley & Co., to let the cotton go off; that Mr. Smith, (now dead) one of the copartners, said he would go and see McNair, and see if he could get back the advance; that he did go and came back, saying that he could not get the money from McNair, he having paid it out to the laborers, and that he shipped the cotton and after it was sold, he said he held the money subject to owner's order, less the $160 advanced. It was further testified that Pippin made a proposition to divide the funds between them, and leave the laborors to fight it...
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Wells v. Clayton, 744
...he must prove every such fact if it is denied by the answer of the defendant. King v. Coley, 229 N.C. 258, 49 S.E.2d 648; Parsley v.Nicholson, 65 N.C. 207. But no proof is required of an immaterial allegation. Jeffreys v. Ins. Co., supra; 41 Am.Jur., Pleading, section 369; 71 C.J.S., Pleadi......
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...for appellee Piedmont & N. Ry. Co. Cooper, Curlee & Sanders, of Burlington, for plaintiff, appellee. SEAWELL, Justice. In Parsley v. Nicholson, 65 N.C. 207, it is "The object of pleading, both in the old and new system, is to produce proper issues of law or fact, so that justice may be admi......
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... ... verdict or finding. (Black on Judgments, sec. 183; ... Bachman v. Sepulveda, 39 Cal. 688; Marshman v ... Conklin, 21 N. J. Eq. 546; Parsley v ... Nicholson, 65 N.C. 207; Frevert v. Henry, 14 ... Nev. 191.) When foreclosure of several mortgages is sought ... and embraced in a single ... ...
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Kelly v. Lynchburg & D.R. Co.
...them in any respect. Such, also, seems, to have been the view of this court from the adoption of the Code of the present time. Parsley v. Nicholson, 65 N.C. 207; Oates Gray, 66 N.C. 442; Katzenstein v. Railroad Co., 84 N.C. 688; and numerous other cases. The impeachment of an award, like th......