McGee v. Ledford , 238 N.C. 269 ( 1953 )

77 S.E.2d 638 (1953) 238 N.C. 269

McGEE
v.
LEDFORD et ux.

No. 94.

Supreme Court of North Carolina.

September 30, 1953.

Cecil C. Jackson, Asheville, for plaintiff appellee.

George F. Meadows, Asheville, for defendant appellant.

BARNHILL, Justice.

Plaintiff's motion for judgment on the pleadings is in effect a demurrer to the answer. Pridgen v. Pridgen, 190 N.C. 102, 129 S.E. 419; City of Raleigh v. Fisher, 232 N.C. 629, 61 S.E.2d 897; Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384; Bessire & Co. v. Ward, 206 N.C. 858, 175 S.E. 208.

The motion in the nature of a demurrer admits (1) the truth of all wellpleaded facts in the answer, and (2) the untruth of plaintiff's own allegations insofar as they are controverted in the answer. City of Raleigh v. Fisher, supra; Oldham v. Ross, 214 N.C. 696, 200 S.E. 393; Guerry v. American Trust Co., 234 N.C. 644, 68 S.E.2d 272.

There can be no judgment for plaintiff on the pleadings unless the facts entitling plaintiff to relief are admitted and no valid defense or plea in avoidance is asserted in the answer. Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705; Bessire & Co. v. Ward, supra. It must appear that (1) the complaint states a good cause of action which entitles plaintiff to some relief, and (2) the answer, construed liberally in favor of the pleader, raises no material issue of fact. Town of Dunn v. Tew, 219 N.C. 286, 13 S.E.2d 536; City of Raleigh v. Fisher, supra.

The pertinent pleadings in this case, considered in the light of these well-recognized rules, which have been consistently applied by this Court, compel the conclusion that the admissions contained in the answer warranted the judgment entered in the court below.

The appellant admits the ownership of the property, the alleged contract with plaintiff to repair the fire damages to her dwelling located on said property, the contract price, the filing of a lien as required by law, her agreement to pay the contract price, and the nonpayment thereof. This leaves no material issue of fact to be answered by a jury.

In this connection we must bear in mind that it is the duty of the court to consider the substitute answer stripped of any and all reference to the insurance company or any promise defendant alleges it made to pay the contract price for and on behalf of the original defendants. They had been stricken from the answer prior to the motion for judgment on the pleadings.

Even if we give consideration to such allegations, they are insufficient to absolve the defendant from liability on the contract she admits she made with plaintiff. The contract respecting the proceeds of the insurance policy was entered into between defendants and the insurance company "for the benefit of the plaintiff", and the insurance company is indebted to the defendants in the sum of $1,000, to be paid to them for the benefit of plaintiff. So she alleges. These allegations fall far short of any assertion that the contract to repair was entered into between plaintiff and the insurance company or that the insurance company is solely liable for the amount admittedly due plaintiff under a contract he made with the appellant. No doubt the defendant confidently anticipated that she would be able to discharge her liability to plaintiff out of the proceeds of the policy. In all probability, it was so understood by all the parties. Even so, the failure of the insurance company to honor its draft does not serve to discharge defendant or shift sole liability to the insurance company. Delivery of the draft of the insurance company to defendants, and by defendants to plaintiff, was at most a conditional payment. When the draft was dishonored by the bank on order of the insurance company, the parties were relegated to their original creditor-debtor status.

For the reasons stated, the judgment entered in the court below is

Affirmed.