Willis v. Branch
| Decision Date | 28 February 1886 |
| Citation | 94 N.C. 142 |
| Court | North Carolina Supreme Court |
| Parties | C. T. WILLIS v. A. BRANCH et als. |
CIVIL ACTION, tried before Graves, Judge, and a jury, at Spring Term, 1885, of the Superior Court of EDGECOMBE county.
The following is a copy of the material facts of the plaintiff's complaint:
“1st. That some time during the year 1882, the plaintiff and defendants entered into an agreement, whereby the defendants leased to plaintiff a hall in the town of Wilson, well known as Mamona Hall, and generally used for theatrical purposes. That said plaintiff agreed to fit up and furnish said hall so that it would be suitable for theatrical entertainments.
2d. That said plaintiff did equip and furnish said hall in all respects required.
3d. That long before said lease expired, the defendants tore out from their place in said hall, the gas fixtures put there by plaintiff at much cost, and removed and damaged the other furniture put in said hall by plaintiff, and, without cause, deprived the plaintiff of the use and occupation of said hall, furniture and gas machine, to the plaintiff's great damage and injury, $1,500.00.
Wherefore the plaintiff demands judgment for the sum of $1,500.00 and costs.”
To this complaint the defendants filed their answer, whereof the following is a copy:
“1st. That as to allegation one, it is true that plaintiff and defendants entered into a contract or agreement, which is herewith filed as a part of this answer, marked A.
2d. That as to allegation three, the hall leased to plaintiff as aforesaid was the second story of a building owned by defendants, and of which the lower story, consisting of two stores, was leased to Branch & Hadley, merchants, who carried therein large stocks of merchandise; that a short time after said lease, without the knowledge of the defendants, or the said Branch & Hadley, the plaintiff placed in the roof of said building a large tank, filled with gasoline, a very dangerous and highly inflammable fluid, connected with lamps by means of pipes, to be used for the purpose of lighting said hall; that the first notice which Branch & Hadley or the defendants had of the action of plaintiff, came from the insurance agents, who informed them that the policies of insurance on said stock of goods, and the building, as well as an adjoining building which belonged to defendants, had been cancelled, and that no insurance would be carried on said property if the tank and gasoline remained in the roof; that therefore defendant A. Branch notified W. W. Hargrave, plaintiff's agent in Wilson, that the said tank must be removed, and in a few days he was informed by Hargrave that he had seen the plaintiff, and that the defendant had permission to remove the tank; that he therefore employed R. L. Wyatt, a skilled and experienced tinner, to remove the tank, with little or no damage thereto; that the tank was, after being emptied, placed in the warehouse of Branch & Hadley, where it remained, subject to plaintiff's order, until destroyed by fire during the month of November, 1884.
3d. That as to allegation four, by the terms of said lease, it was expressly stipulated that the plaintiff should pay, quarterly, certain rents, and that upon failure to pay said rents, the lease should be forfeited, and the defendants might enter upon, and take the property in their possession; that the plaintiff did fail to pay the rent as stipulated, and the defendants, in the exercise of their rights under the lease, entered upon, and resumed possession of said hall; that plaintiff is now indebted to them _____ dollars for rent of said hall.
For a further defence they say, that by reason of some tax imposed upon theatrical companies by the town of Wilson, the plaintiff announced publicly that he had abandoned the enterprise, and would no longer use the hall; that it is untrue that plaintiff has been damaged by any act of defendants.
Wherefore defendants demand judgment that they go without day and recover their costs.”
The following is a copy of the material facts of the case settled upon appeal for this Court.
The following issues were submitted to the jury:
1st. Have defendants violated their contract as alleged in the complaint? Answer--Yes.
2nd. Had plaintiff forfeited his lease by non-payment of rent or otherwise? Answer--No. 3rd. What damage has plaintiff sustained by reason of said breach? Answer-- $500.
Upon the first issue, the Court instructed the jury, that if they believed from the testimony, that the defendants had failed to plaster the walls as they had agreed to do, this was a breach of their contract, for which an action would lie, and they would therefore answer the first issue “Yes.”
Upon the second issue, that if the jury believed from the testimony, that the plaintiff, at the time defendants took possession of the hall, had paid the rent, their answer to the second issue would be “No.”
Upon the third issue, that the measure of damages were the probable profits which the plaintiff would realize from his lease, after payment of rent and expenses. To all which the defendants excepted on the following grounds:
To the charge upon the first issue, because there is no allegation in the complaint that plaintiff was damaged by the nonplastering of the hall.
To the charge upon the second issue, because the Court left it to the jury to ascertain whether the rent had been paid or not, when he should have charged them that if they believed the plaintiff's own testimony, the rent had not been paid, and as a matter of law, he had forfeited his lease.
To the charge upon the third issue, because the jury were not told that there was no evidence of the plaintiff's being damaged by the failure of defendants to plaster the hall.
The Court refused to grant a new trial, gave judgment for the plaintiff, and the defendants appealed.
Mr. A. W. Haywood ( Messrs. J. L. Bridgers & Son also filed a brief), for the plaintiff .
Mr. Geo. V. Strong, for the defendants .
MERRIMON, J. (after stating the facts).
It is the office of the complaint to state in a clear, succinct, and intelligible manner, the plaintiff's cause of action, and to demand judgment upon the same. The plaintiff cannot go to trial and recover upon a cause of action developed by facts stated in the answer, without alleging it himself. He must allege the cause of action in his complaint, and when the facts of the same are put in issue, prove them by competent evidence. He cannot rely upon a cause of action suggested in the pleadings by his adversary. Shelton v. Davis, 69 N. C., 324; Rand v. The Bank, 77 N. C., 152; McLaurin v. Cronly, 90 N. C., 50.
It is true, that in some cases, a defective or imperfect statement of a cause of action, may be aided by admissions in the answer, as was decided in Garrett...
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