Winston v. Williams & Mckeithan Lumser Co. Of Va., 452.

• Decision Date: 16 April 1947
• Docket Number: No. 452.,452.
• Citation: 42 S.E.2d 218,227 N.C. 339
• Court: North Carolina Supreme Court
• Parties: WINSTON. v. WILLIAMS & McKEITHAN LUMSER CO. OF VIRGINIA et al.

227 N.C. 339

42 S.E.2d 218

WINSTON.

v.WILLIAMS & McKEITHAN LUMSER CO. OF VIRGINIA et al.

No. 452.

Supreme Court of North Carolina.

April 16, 1947.

Appeal from Superior Court, Wake County; C. Everett Thompson, Judge.

Action by R. W. Winston, Jr., against Williams & McKeithan Lumber Company of Virginia and J. H. Hollingsworth to recover damages for procuring the breach of contract to sell the timber. From a judgment overruling the defendants' demurrer to the complaint, the defendants appeal.

Judgment affirmed.

Civil action to recover damages for procuring the breach of contract to sell timber --heard upon demurrer to complaint.

Plaintiff alleges in his complaint, in brief, these facts:

That Walter P. Stallings and his wife, being the owners of a certain tract of land in Johnston County, North Carolina, executed a written contract, dated March 22, 1944, and duly registered in Johnston County on March 24, 1944, by the terms of which they agreed to sell and convey by deed to plaintiff certain timber on said land; that Stallings and his wife failed and refused to deliver deed and to carry out said contract, but instead sold and conveyed said timber to defendants who have cut and removed same from said land, to the damage of plaintiff; that defendants had both constructive and actual notice that plaintiff had contracted to buy said timber; that notwithstanding such notice defendants "did wrongfully, unlawfully and maliciously persuade the said Walter P. Stallings and his wife * * * to breach their contract and to sell the timber to the said defendants"; that "such interference was the direct and proximate cause of the damage suffered by the plaintiff * * *"

Defendants demurred to the complaint for that the facts alleged do not constitute a cause of action against defendants in favor of plaintiff, and for that there is no allegation that defendants made any false or fraudulent representations to plaintiff or breached any contract with plaintiff.

The court, being of opinion that the facts alleged in the complaint are sufficient to constitute a cause of action against defendants, overruled the demurrer.

From judgment in accordance therewith, defendants appeal to Supreme Court and assign error.

Harris & Poe, of Raleigh, for plaintiff-appellee.

Wellons, Martin & Wellons, of Smith-field, for defendants-appellants.

WINBORNE, Justice.

The sole question here is as to the correctness of the action of the judge of Superior Court in overruling the demurrer to the complaint. In the light of appropriate procedure and applicable principles of law, we have opinion accordant with the ruling.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted * * *". Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. Both the statute, G.S. § 1-151, and the decisions of this Court require that the pleadings be liberally construed and every reasonable intendment and presumption must be in favor of the pleader. The pleading must be fatally defective before it will be wholly rejected. Blackmore v. Winders, 144 N. C. 212, 56 S.E. 874; Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, and numerous others.

The applicable principle of law is appropriately stated in Elvington v. Waccamaw Shingle Co., 191 N.C. 515, 132 S. E. 274, 275, in opinion by Brogden, J., in this manner: "It is a violation of a legal right, recognized by law, to interfere with contractual relation if there be no sufficient justification for the interference". And the writer quotes from Angle v. Chicago, St. P., M. & O. R. Co., 151 U. S. 1, 14 S.Ct. 240, 38 L.Ed. 55, as "a clear and comprehensive statement of the principle", as follows: " 'Wherever a man does an act which in law and in fact is a wrongful act, and such an act as may, as a natural andprobable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case will lie.'" Compare Biggers v. Matthews, 147 N.C. 299, 61 S.E. 55; Bell v. Danzer, 187 N.C. 224, 121 S.E. 448; Bruton v. Smith, 225 N.C. 584, 36 S.E.2d 9.

In this connection in the present case these principles are pertinent: Standing timber is a part of the realty. Drake v. Howell, 133 N.C. 162, 45 S.E. 539. Hence, a contract to sell and convey standing timber is a...