Brewer v. Hatcher , 52 N.C. App. 601 ( 1981 )

279 S.E.2d 69 (1981)

E. Craven BREWER, d/b/a Brewer Motor and Equipment Co.
v.
Howard HATCHER.

No. 804DC724.

Court of Appeals of North Carolina.

June 16, 1981.

E. C. Thompson, III, Warsaw, for plaintiff-appellee.

Bruce H. Robinson, Jr., Wallace, for defendant-appellant.

ROBERT M. MARTIN, Judge.

In his appellate brief, defendant contends the court misinterpreted his position by assuming that the counterclaim was one for libel and slander rather than for interference with a contractual relationship. Prior to making this assertion in his brief, defendant states that "[b]efore drafting the Defendant's Counterclaim, Defendant's attorney consulted a recognized form book and followed the format almost verbatim in drafting the Second Counterclaim. See Bender's Federal Practice Forms, Volume 1B, Form No. 288.1 (Complaint in an action against a credit reporting firm for liable [sic])." From this statement it is obvious why the trial court assumed that the theory of defendant's counterclaim was one of libel and defamation. However, we are persuaded that defendant's counterclaim sufficiently alleges a claim for damages for the interference of defendant's contractual relationship with the Farmers Home Administration.

A counterclaim is substantially the allegation of a cause of action on the part of the defendant against the plaintiff and it must set forth the facts constituting such cause with the same precision as if the cause were alleged in a complaint. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40 (1964); Perkins v. Perkins, 249 N.C. 152, 105 S.E.2d 663 (1958); 10 Strong's N.C. Index 3d Pleadings § 11 (1977). The following rules, therefore, regarding the sufficiency of a complaint to withstand a motion to dismiss made pursuant to N.C.Gen.Stat. § 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted, are equally applicable to a claim for relief stated by a defendant in a counterclaim.

For purposes of a motion to dismiss, the allegations of the complaint must be treated as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282, 79 A.L.R.3d 651 (1976). A complaint is sufficient to withstand the motion to dismiss where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and the allegations contained therein are sufficient to give the defendant sufficient notice of the nature and basis of the plaintiff's claim to enable him to answer and prepare for trial. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). A plaintiff's claim for relief should not be dismissed unless it affirmatively appears that the plaintiff is entitled to no relief under any state of facts which could be presented in support of the claim. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976). With regard to its sufficiency, the question is whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory. Benton v. Construction Co., 28 N.C.App. 91, 220 S.E.2d 417 (1975).

In Johnson v. Gray, 263 N.C. 507, 509, 139 S.E.2d 551, 552-3 (1965), the Supreme Court quoted the following language with approval from the opinion of Justice Devin (later Chief Justice), writing in Coleman v. Whisnant, 225 N.C. 494, 506, 35 S.E.2d 647, 656 (1945):

[w]e think the general rule prevails that unlawful interference with the freedom of contract is actionable, whether it consists in maliciously procuring breach of a contract, or in preventing the making of a contract when this is done, not in the legitimate exercise of the defendant's own rights, but with design to injure the plaintiff, or gaining some advantage at his expense.... In Kamm v. Flink, 113 N.J.L., 582, 175 A. 62, 99 A.L.R., 1, it was said: "Maliciously inducing a person not to enter into a contract with another, which he would otherwise have entered into, is actionable if damage results." The word "malicious" used in referring to malicious interference with formation of a contract does not import ill will, but refers to an interference with design of injury to plaintiff or gaining some advantage at his expense.

In his answer to plaintiff's complaint, defendant denied that he was indebted to plaintiff. The gist of defendant's second counterclaim, quoted above, is that the plaintiff wrongfully and maliciously prevented a third party, the Farmers Home Administration, from entering into a contract with defendant, which it otherwise would have entered into but for plaintiff's attempt to gain some advantage at defendant's expense, i. e., to compel defendant to pay an unjust debt. The letter written by plaintiff to the FHA is alleged as the means used by plaintiff to accomplish his unlawful design. "The means used do not change the nature of the cause of action." Johnson v. Graye, 251 N.C. 448, 451, 111 S.E.2d 595, 597 (1959).

The question of whether the allegations of defendant's counterclaim presented a claim for relief for libel and slander is irrelevant to this appeal. The defendant has not argued this question in his brief. Therefore, we deem it abandoned. Rule 28, N.C.Rules App.Proc.

For the reasons previously set forth, we hold that the order of the trial court granting plaintiff's motion to dismiss defendant's second counterclaim must be and is hereby reversed.

Reversed and remanded.

MORRIS, C. J., and WHICHARD, J., concur.