Roberson v. Swain, 451

Decision Date01 February 1952
Docket NumberNo. 451,451
Citation69 S.E.2d 15,235 N.C. 50
CourtNorth Carolina Supreme Court
PartiesROBERSON, v. SWAIN et al.

Wheeler Martin, Williamston, Clem B. Holding, and Douglass & McMillan, all of Raleigh, for plaintiff-appellant.

Brassfield & Maupin, and R. Roy Carter, all of Raleigh, for defendants-appellees.


A demurrer admits the truth of all allegations of fact and such inferences of fact as can reasonably be drawn from a pleading. As against a demurrer, a complaint must be liberally construed and every reasonable inference and intendment deducible therefrom must be resolved in favor of the pleader before a demurrer prevails. A pleading cannot be overthown by a demurrer unless it is wholly insufficient. If, upon a liberal construction of the entire pleading, any part presents facts or reasonable inferences of fact which taken as true make out a cause of action, the pleading is sufficient to repel the attack of the demurrer. Wiscassett Mills Co. v. Shaw, Com'r of Revenue, 233 N.C. 71, 62 S.E.2d 487; Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d 365; Meyer v. Fenner & Beane, 196 N.C. 476, 146 S.E. 82; Deaton v. Deaton, 234 N.C. 538, 539, 67 S.E.2d 626; Guerry v. American Trust Co., 234 N.C. 644, 68 S.E.2d 272.

On this question, Barnhill, J., in Wiscassett Mills Co. v. Shaw, Com'r of Revenue, supra [233 N.C. 71, 62 S.E.2d 488], said: 'It must be fatally defective in that it fails to allege any fact or combination of facts which, if true, entitles plaintiff to some relief.' Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Fairbanks, Morse & Co. v. J. A. Murdock Co., 207 N.C. 348, 177 S.E. 122.

The complaint in the instant case presents a difficult question, but viewed in the light of the controlling principles of law, we are led to the conclusion that it is sufficient to repel the demurrers of the defendants.

The pertinent facts stated in the complaint are as follows: On and prior to July 26, 1947, plaintiff and defendant Swain owned as tenants in common certain real and personal property in the city of Raleigh, known as the R & S Packing Company. This property consisted of land, buildings, slaughterhouse, improvements and equipment. Plaintiff owned 3/4ths interest in the land and 5/8ths interest in the improvements, additions and equipment, while the defendant Swain owned 1/4th interest in the land and 3/8ths interest in the improvements, additions and equipment. Upon negotiations instituted by Swain, plaintiff agreed to sell and Swain agreed to purchase plaintiff's interest in both the real and personal property at the price of $150,000. It was agreed that this contract should be carried out by the execution and delivery to the plaintiff of two series of promissory notes signed by defendant Swain and his wife, Pearl M. Swain, one series aggregating $30,000 and the other series aggregating $120,000. These notes were to be payable at various intervals beginning January 1, 1949 to and including January 1, 1960. The total of both series of notes represented the total consideration agreed upon as the purchase price of plaintiff's interest in said property. It was further agreed that a part of the contract would be written embodying the terms and conditions of the sale of the property and reciting a consideration of $30,000. The series of notes aggregating $120,000 for some reason not disclosed by the record were not to appear in the written part of the contract.

On July 26, 1947, D. M. Roberson, husband and agent of plaintiff, and defendant Swain met in Williamston, North Carolina, to complete the transaction. Swain had prepared all of the notes, including those set out in the paper writing and those agreed to be delivered in addition thereto, but none of the notes had been signed by the wife of defendant Swain. The contract provided that all of the notes were to be signed by both Swain and his wife. When this discrepancy was called to the attention of Swain by plaintiff's agent, Swain represented to plaintiff's agent that he would take all of said notes back to Raleigh and in compliance with the original agreement would obatin the signature of his wife to all of the notes and immediately return them to the plaintiff. It was upon this statement and representation that plaintiff's husband delivered to defendant Swain the paper writing with the notes. At that time it was the distinct understanding between plaintiff's agent and defendant Swain that Swain would have his wife execute all of said notes and would immediately forward them to the plaintiff. Defendant Swain has kept the written part of the contract, but has failed and refused and still fails and refuses to deliver to the plaintiff said notes representing the consideration of said agreement.

The plaintiff sets forth in her complaint that the statements and representations made by the defendant Swain to her agent that he would have said notes executed according to the agreement and return them to the plaintiff were false and that defendant Swain knew the statements were false and that they were made by him with the intent to deceive the plaintiff and that relying upon said false representations, plaintiff was deceived to her injury in delivering to said Swain the written part of the agreement. The complaint alleges that a delivery of the paper writing upon the consideration and upon the representation of Swain makes the delivery of the written part of the contract ineffectual in law and that it should be set aside.

The complaint further alleges that defendant Swain has caused to be formed a corporation which is designated as R & S Packing Company, the identical name by which the property holding of plaintiff and defendant Swain is known, and that the title to said property has been put in the name of the corporation by Swain; that the grantee had knowledge of the fraud; and that a transfer of the property by said corporation would be detrimental and injurious to the rights of the plaintiff. The complaint asserts that in some way the defendant Swain owns a majority of the stock of said corporation and that by reason of the matters and things alleged in the complaint, she is entitled to an order restraining the corporation from disposing of any of the property above mentioned.

The contract here is for the sale of both real and personal property. Jamerson v. Logan, 228 N.C. 540, 46 S.E.2d 561, 15 A.L.R.2d 1325. The essential problem arises from the delivery of the written portion of the contract. The contention of the plaintiff is that the paper writing represented only a portion of the contract and that the whole contract included the execution and delivery of notes by ...

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10 cases
  • Wilkins v. Commercial Finance Co.
    • United States
    • North Carolina Supreme Court
    • March 25, 1953
    ...of a fact, and as such may furnish the basis for an action for fraud if the other essential elements of fraud are present. Roberson v. Swain, 235 N.C. 50, 69 S.E.2d 15; Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364; Planters Bank & Trust Co. v. Yelverton, 185 N.C. 314, 117 S.E. 299; Her......
  • Meyer v. Ludvik
    • United States
    • Wyoming Supreme Court
    • April 9, 1984
    ...Schroerlucke v. Hall, Ky.App., 249 S.W.2d 130 (1952); Hearns v. Hearns, 333 Mich. 423, 53 N.W.2d 315 (1952); Roberson v. Swain, 235 N.C. 50, 69 S.E.2d 15 (1952); James and Gray, Misrepresentation--Part II, § 10, 37 Maryland L.Rev. 488, 502-508 Sabo v. Delman, 3 N.Y.2d 155, 164 N.Y.S.2d 714,......
  • Zager v. Setzer
    • United States
    • North Carolina Supreme Court
    • June 30, 1955
    ...'False representations as to income, profits, or productivity of property as fraud,' 27 A.L.R.2d 14, pp. 60 and 61; Roberson v. Swain, 235 N.C. 50, 69 S.E.2d 15. We have not overlooked the variance between the defendant's allegations and proofs. In his further defense and counterclaim the d......
    • United States
    • North Carolina Court of Appeals
    • April 20, 2004
    ...fact, and as such may furnish the basis for an action for fraud if the other elements of fraud are present, Roberson v. Swain, 235 N.C. 50, 55, 69 S.E.2d 15, 19 (1952); see also Wilkins v. Finance Co., 237 N.C. 396, 75 S.E.2d 118 (1953); and (2) that proof of fraud necessarily constitutes a......
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