Stokes v. Taylor

• Decision Date: 16 December 1889
• Citation: 10 S.E. 566,104 N.C. 394
• Parties: STOKES v. TAYLOR.
• Court: North Carolina Supreme Court

10 S.E. 566

104 N.C. 394

STOKES v. TAYLOR.

Supreme Court of North Carolina

December 16, 1889

Appeal from superior court, Watauga county; R. F. ARMFIELD, Judge.

Strong Gray & Stamps, R. Z. Linney, G. W. Bower, and J. F. Morphew for appellant.

Batchelor & Devereux and Bingham & Caldwell, for appellee.

CLARK J.

The allegation of the complaint was that the defendant was justly indebted to the plaintiff $1,440, "for services performed as clerk in defendant's store from 1st April 1878, to 1st April, 1884, at $20 per month, subject to a credit of $140, which plaintiff is indebted to defendant by book-account." The answer denied the allegations of the complaint, and pleaded also the statute of limitations. On the trial the plaintiff testified that in the spring of 1878 he entered the service of defendant for an indefinite period of time, with the understanding that he was to be paid whatever his services were worth, and with that understanding remained with the defendant about six years, and that his services were worth $20 per month. To this evidence defendant objected, on the ground that the complaint set forth a special contract for six years' service at $20 per month, and plaintiff should not be allowed to prove as upon aquantum meruit or an implied contract. The evidence was admitted, and defendant excepted. The court instructed the jury that upon the complaint plaintiff would be allowed to prove either a special or implied contract, and he could recover on either, if the evidence justified it and plaintiff was not restricted to proof of a special contract.

Under the common-law rules of pleading, the requirement of accuracy and precision was often pushed to the extreme. There have been cases where the rights of litigants were determined, not on the merits of the controversy, but on such technicalities as the pleader's having unfortunately used the word "had," in the past tense, instead of "have," in the present tense. Even in the modern reports of Meeson & Welsby, instances of almost equal absurdity and refinement are to be found. These ideas were entirely abrogated in this country by the Codes of Civil of Civil Procedure, wherever adopted. In England, after a series of improvements, beginning in 1834, when the celebrated "Rules of Hilary Term" were adopted, the British parliament has swept them out of the English law, and has introduced the substance of the American reformed civil procedure. Pom. Rem. § 509. The rule of the common law was that every pleading should be construed strongly against the pleader. The Code system is just the reverse. "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties." Code § 260. In the dissenting opinion of the late very learned chief justice in Jones v. Mial, 79, N.C. 167, he lays down the proposition that technical distinctions, obtaining under the former system of pleading and practice, between declarations on special contract and on the common counts in assumpsit, are abolished by the "more rational and simple system of the present Code," and that when "the essential facts are contained in the pleadings, whether the remedy is on the special contract or on the common counts, it ought not to be denied." On a rehearing this view was sustained by a unanimous court, DILLARD, J., delivering the opinion. The court held that the plaintiff, having alleged the facts and asked recovery on a special contract, could recover on a quantum meruit without amending his complaint. In Sussdorff v. Schmidt, 55 N.Y. 319, the complaint alleged an agreed compensation for services, but at the trial plaintiff was permitted to prove as upon a quantum meruit. This was held no error, or, at most, an immaterial variance. To the same effect are numerous other decisions in the states where the Code system prevails. It is true that a plaintiff cannot abandon the averments in his complaint, and recover upon a different state of facts, unless amendment is allowed. Grant v. Burgwyn, 88 N.C. 95. In Shelton v. Davis, 69 N.C. 324, PEARSON, C.J., says that, while a plaintiff "can sue for a horse and recover a cow," it is necessary that the plaintiff obtain an amendment which the court can always allow, except when "it would substantially change the claim or defense." To the same effect are Oates v. Kendall, 67 N.C. 241; Bullard v. Johnson, 65 N.C. 436. The true doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action are stated in the complaint, or can be inferred therefrom by reasonable intendment, though the allegations are imperfect, incomplete, and defective, and such insufficiency pertains rather to the form than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, (as was asked in this case,) but by a motion before the trial to make the averments more definite by amendment. Pom. Rem. § 549; Code N.C. § 261; Moore v. Edmiston, 70 N.C. 510. We have seen, however, in Jones v. Mial and Sussdorff v. Schmidt, supra, that, where the allegation is of an express contract, proof as upon aquantum meruit was allowable upon the facts in those cases without amendment, it being an immaterial variance. The pleadings in this case come, however, rather within the rule laid down by MERRIMON, J., in Lewis v. Railroad Co., 95 N.C. 179, for the facts "are so fully and broadly stated that the...