New Bern Banking & Trust Co v. Duffy

• Decision Date: 27 September 1911
• Citation: 156 N.C. 83,72 S.E. 96
• Court: North Carolina Supreme Court
• Parties: NEW BERN BANKING & TRUST CO. v. DUFFY et al.

72 S.E. 96

156 N.C. 83

NEW BERN BANKING & TRUST CO.

v.DUFFY et al.

Supreme Court of North Carolina.

Sept 27, 1911.

1. Corporations (§ 514^*)—Action on Note— Corporate Existence—Allegation.

Where it appeared from the allegations of the complaint of a corporation on a note transferred to it that the payee indorser dealt with the plaintiff as if it had lawful right to contract with him, impliedly admitting that it was a corporation by indorsing the note to it, the complaint was not demurrable for failure to allege plaintiff's corporate existence.

[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 514.*]

2. Pleading (§ 34*)—Construction.

Revisal 1905, § 495, providing that the allegations of a pleading shall be liberally construed with a view to substantial justice between the parties, means only that if it can be seen from the general scope of the pleading that the 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, and will not be construed to mean that a pleading says what it does not.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 66-75; Dec. Dig. § 34.*]

3. Pleading (§ 48*)—Complaint—Demurrer.

A complaint cannot be overthrown by a demurrer if, in any portion 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 therefrom.

[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 48.*]

4. Pleading (§§ 192, 367*)—Objectionable Features—Correction.

Any formal defect in a pleading which renders it unintelligible may be corrected on motion as authorized by Revisal 1905, § 496, or in cases where it contains a defective statement, as the omission of a necessary allegation which can be cured by amendment, a demurrer will lie.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 408-127, 1173-1193; Dec. Dig. §§ 192, 367.*]

5. Pleading (§ 346^2-*) — Demukree — Frivolousness.

A demurrer to a complaint was not frivolous so as to entitle plaintiff to judgment on the pleadings where it raised a question fit for consideration or discussion.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1060-1064; Dec. Dig. S 346.*]

Appeal from Superior Court, Craven County; Ferguson, Judge.

Action by the New Bern Banking & Trust Company against R. N. Duffy and others. From an order overruling the demurrer of defendant D. H. Green, he appeals. Affirmed.

Simmons & Ward, for appellant.

Moore& Dunn, for appellee.

WALKER, J. This is an action upon a note originally made by R. N. Duffy and A. C. Burnett to D. H. Green, and by the latter indorsed for value to the plaintiff. In a former suit we directed that a judgment be entered against R. N. Duffy, and that the cause proceed against D. H. Green, for whom a new summons was issued and executed. A. C. Burnett has never been served with process, and is therefore not a party to the suit, so as to be bound by any judgment therein. The facts are stated in a case by the same title (153 N. C. 62, 68 S. E. 915).

Defendant demurred to the complaint upon the following grounds: (1) That the corporate existence of the plaintiff is not alleged. It appears by allegations of the complaint that defendant D. H. Green dealt with the plaintiff as if it had lawful right to contract with him, and he indorsed the paper to plaintiff, thereby impliedly admitting that it is a corporation, as it purported to be. In Ryan v. Martin, 91 N. C. 465, Judge Merrimon said: "It is true that it must appear that there was a corporate existence either de jure, or de facto at least. And, if the corporation itself were suing, it would be necessary for it to prove its charter, and an organization in accordance therewith, if these matters were properly put in issue. But if a person entered into a contract with a body purporting to be a corporation, or which claims to hold property purchased and derives title thereto from it, this is prima facie evidence against such person that such corporation was in existence de facto at least at the time of the contract with or purchase from it, and the presumption arises in such case that the existence of the corporation continues at the bringing of the action. Accordingly it has been held in an action against the maker of a promissory note executed to a corporation as payee, in its corporate name, that the production of the note duly indorsed to the plaintiff was sufficient evidence that the corporation was duly organized and competent to transact business. Williams v. Cheney, 3 Gray (Mass.) 215, 220. It was said in that case that the defendants by giving their notes to the corporation in their corporate name as payees admitted their legal existence and capacity to make and enforce the contracts declared on, so far at least as to render proof on that point unnecessary in the opening of the plaintiff's case." So in Stanly v. Railroad Co., 89 N. C. 331, it was held that a railroad company in a suit against it may be designated as a company by its corporate name, without an averment of its corporate capacity, and, if this is disputed, it should be by answer, and not by demurrer. Where the defendant's counsel insisted that a declaration describing the defendant as a company, without showing whether or not it was a corporation, was open to a demurrer, Mr. Justice Maule said: "There is no positive rule that I am aware of which requires such a mode of description as the defendant's counsel insists upon in this case, nor is the description which is given at all out of the usual form. It impliedly amounts to an allegation that the defendant is a corporate body." Wolfe v. Steamboat Company, 62 E. C. D. 103.

The note was to become due at a day certain, with a provision that if there was a default in payment of any installment of interest at its maturity, and for 10 days after a demand, plaintiff might sue upon the note before the day fixed for its maturity. Plaintiff alleged that demand had been made for the payment of interest after default and that the same has not been paid. It is argued by the defendant's counsel that there is neither an allegation that demand was made upon this defendant, nor that, if made, 10 days had expired before this suit was commenced, so as to bring the demand within the terms and requirements of the bond. The record shows that the suit was begun on April 20, 1911, and summons served on April 24, 1911. We may look at the summons to ascertain this fact. Harrington v. Wadesboro, 153 N. C. 437, 69 S. E. 399, where a learned discussion of the subject by Justice Hoke will be found, backed by a copious citation of authorities. So that this ground of demurrer is not true in fact. That the demand was made upon this defendant, D. H. Green, sufficiently appears in the complaint He is now the only defendant, and we cannot assume that the plaintiff made a demand upon some one who did not owe the debt, or upon a person who had not been sued. The...