Johnston v. Smith
| Decision Date | 28 February 1882 |
| Citation | 86 N.C. 498 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM JOHNSTON v. S. P. P. SMITH. |
CIVIL ACTION heard upon a demurrer to the complaint at Fall Term, 1881, of MECKLENBURG Superior Court, before Eure, J.
The plaintiff complained--
1. That on the 3d day of March, 1879, the defendant made
and delivered his promissory note, whereby he promised to pay to the plaintiff or order, four months after date thereof, the sum of twelve hundred and fifty dollars, payable at the Commercial National Bank of Charlotte, N. C., with interest at 8 per cent. per annum.
2. That at the maturity of the note, the plaintiff presented it for payment at the office of said bank, when and where payment of the same was refused.
3. That no part of said note has been paid, but the same is due with interest.
4. That said note was given for fifty shares of stock of the South Carolina Land and Improvement Company of par value of one hundred dollars per share, which plaintiff had sold to the defendant, but the said stock was to be held as collateral security for said note until the same was paid, and then a certificate therefor was to be delivered to the defendant.
5. That at the time of making the note the plaintiff was the owner of several hundred shares of stock of said company; that said stock has no market value and plaintiff cannot realize anything by the fifty shares which he has caused to be issued in defendant's name. The plaintiff now brings the said certificate of stock into court and offers the same to the defendant upon payment of said debt.
Wherefore plaintiff demands judgment for the sum of twelve hundred and fifty dollars with interest thereon at 8 per cent. per annum from maturity, and costs of action.
The defendant filed a demurrer, and assigned as grounds thereof--
1. That the complaint does not set forth and allege any, or a sufficient consideration for the note sued on, but does show a total want of consideration therefor.
2. That it alleges and shows a total failure of consideration therefor.
3. That it alleges and makes no tender of the shares of stock alleged to have been sold to defendant.
4. That the stock tendered is not that alleged to have been sold to defendant.
5. That the alleged certificate of stock was issued after the action was commenced, to wit, the 7th of February, 1880, and after the original complaint was filed.
6. The complaint does not allege the existence of any such company, as that purporting to issue the certificate of stock, or any legal authority to do so, in those purporting to issue the same, or the validity thereof.
7. The said certificate filed as part of the complaint purports to be issued by a corporation, but the existence of such corporation is not alleged, nor its right to issue such, or any certificate of stock.
8. The complaint alleges and shows that said certificate of fifty shares of stock in said company was utterly worthless of no value, when issued, and now.
After a discussion of the demurrer by counsel on both sides, His Honor adjudged that the demurrer be sustained. And thereupon the counsel for the plaintiff moved the court to state what grounds in the demurrer were sustained, and which were overruled, to the end that the plaintiff may amend as to any formal defect.
The motion was denied by the court, but the defendant was allowed to amend if he desired. The plaintiff declined to amend and appealed to this court.
Messrs. Jones & Johnston, for plaintiff .
Messrs. Bynum & Grier, for defendant .
The exception taken by the defendant to the refusal of His Honor to specify in his judgment which of the causes of demurrer were sustained, is not tenable. We know of no law or rule of practice which required the court to do so, while we admit such a practice would be convenient to the party demurring and the saving of labor to the appellate court.
The first and second causes of demurrer assigned, touching the want of consideration, involve the same point and will be treated together.
As the demurrer admits the facts stated in the complaint to be true, if the complaint had stated any facts from which it might be inferred that the stock had no value at the date of the contract, this ground of demurrer might properly have been sustained, but the complaint only states that the stock at the time of filing the complaint had no market value, and the plaintiff could not realize anything from it-- non constat, but that the stock may have had a market value at the date of the sale; nor does it follow that although the stock may have had no market value at the time of filing the complaint, it may not have had some intrinsic value at that date, and even market value at the date of the sale. And if at the time of the sale it had any value, no matter how small, it was a sufficient consideration to support the sale. McEntyre v. McEntyre, 12 Ired., 299.
We understand the law to be settled by repeated adjudications in this state, that to defeat a sale or contract for the want of consideration, there must be an entire failure; and it is otherwise where there is only a partial failure, which can only be remedied by a distinct action, and...
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Swift & Co. v. Aydlett
...N.C. 302. "If it [the article sold] be of no value to either party, it, of course, cannot be the basis of a sale." Ashe, J., in Johnston v. Smith, 86 N.C. 498. And, the instant case, a stipulation that there is no warranty against the worthlessness of the fertilizers manufactured and sold b......
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...Co., 209 N.C. 29, 182 S.E. 719; Swift & Co. v. Aydlett, 192 N.C. 330, 135 S.E. 141; Hyman v. Broughton, 197 N.C. 1, 147 S.E. 434; Johnston v. Smith, 86 N.C. 498. The items of special damages--loss of profits, freight, boxes and cartons, packing, billing and shipping, advertising, and damage......
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