Shaffer v. Bank

• Decision Date: 07 October 1931
• Docket Number: 50.
• Citation: 160 S.E. 481,201 N.C. 415
• Parties: SHAFFER v. BANK et al.
• Court: North Carolina Supreme Court

160 S.E. 481

201 N.C. 415

SHAFFER v. BANK et al.

No. 50.

Supreme Court of North Carolina

October 7, 1931

Appeal from Superior Court, Nash County; Harris, Judge.

Action by L. G. Shaffer against Morris Bank, administrator of Julius Shaffer, deceased, and others. From an adverse judgment plaintiff appeals.

Reversed.

The complaint sets out the following allegations:

The plaintiff resides in Nash county; Morris Bank and his wife in Baltimore. The principal office of the corporate defendant is in the city of New York.

Julius Shaffer died August 12, 1929, leaving neither wife nor children, his next of kin being two brothers and a sister namely, the plaintiff, Morris Shaffer of New York, and the defendant Ida Bank.

The deceased was a resident of Fayetteville. The plaintiff and Morris Bank conferred as to an administration on the estate. Afterwards, Morris Bank by letter requested the plaintiff to renounce his right to qualify as administrator and the plaintiff refused. Morris Bank then went to Fayetteville and falsely represented to the clerk in Cumberland county that he was the proper person to qualify, that all the relatives of the deceased were nonresidents of this state, and that he held their renunciation. In this way he falsely secured letters of administration and gave bond in the sum of $60,000, with the corporate defendant as surety. Morris Bank was indebted to the estate in the sum of $9,800. Ida Bank consented to and approved what he had done. As administrator he received and removed from North Carolina all the assets of the estate.

These two defendants unlawfully conspired to cheat and defraud the plaintiff and held the evidences of Morris Bank's indebtedness to the estate of the deceased; fraudulently concealed from the plaintiff the financial condition of the estate; misrepresented the value of the plaintiff's interest; stated that it would hasten a settlement of the estate if the plaintiff would execute a deed of assignment to Ida Bank; and that by reason of the fraud so practiced the plaintiff assigned all his right, title, and interest in the estate of the deceased. He received $16,000, which the administrator represented to be the worth of the plaintiff's interest and which in fact was much less than its value.

On December 4, 1929, the administrator filed with the clerk in Cumberland county a purported final account showing the value of the estate to be approximately $70,000, although in fact it was worth in excess of $100,000. The plaintiff demanded payment of the full value of his interest, which the administrator refused to pay. The plaintiff then brought suit in the superior court of cumberland county and the administrator accounted for $3,000, the difference shown by the account, but still concealed from the plaintiff the true value of the estate and of his interest therein, and in this way secured the signing of a consent judgment.

The plaintiff afterwards discovered that the estate was worth much more than the administrator's account disclosed and finally brought this action to recover the amount demanded in the complaint as money had and received to the use of the plaintiff.

The defendants demurred to the complaint, the court sustained the demurrer, and the plaintiff appealed.

Grissom & Marshburn, of Rocky Mount, and Cooley & Bone, of Nashville, for appellant.

Nimocks & Nimocks and Dye & Clark, all of Fayetteville, for appellees.

ADAMS J.

Under our practice all demurrers are special and may be pleaded only for the causes specified in the statute. C. S. § § 511, 512; Love v. Comm'rs, 64 N.C. 706. The causes for which the present defendants demur are the improper joinder of parties and causes, the plaintiff's failure to state a cause of action, and "no jurisdiction" of the person of one of the defendants, or of the subject of the action.

The demurrer admits all the allegations in the complaint; and in giving the complaint a liberal interpretation we must adhere to the oft-repeated rule that if it sets out facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can fairly be gathered from it, the pleading will stand, because the plaintiff is entitled to the benefit of every presumption and of every reasonable intendment. Greene County v. Bank, 193 N.C. 524, 137 S.E. 593; Seawell v. Cole, 194 N.C. 546, 140 S.E. 85.

The demurrer contains the recital that the defendants "enter a special appearance and demur to the complaint." The feme defendant undertook to amend the original demurrer by stating that she entered a special appearance and moved to dismiss the action as to her, for the reason that she was a resident of Baltimore and not subject to the jurisdiction of the court.

If the feme defendant meant that she had been brought into court by defective process or defective service she should have made a special appearance in the beginning and...