Chambers v. Redevelopment Commission of High Point ( 1968 )

Mallard, C.J.

In the record on appeal plaintiff makes only two assignments of error on two exceptions; (1) the action of the trial court in sustaining the demurrer of the defendant, and (2) the action of the trial court in the signing of the order in this matter sustaining the demurrer of the defendant.

In plaintiff’s brief he asserts that the questions presented are:

“I. Does plaintiff’s displaced business, by meeting all requirements set forth in 42 U.S.C. 1465 (b), have a right to receive the displacement benefits provided for in said section without having previously been declared eligible to receive same by the Redevelopment Commission of High Point?

II. Has Congress made an unconstitutional delegation of the judicial function in 42 U.S.C. 1465 (e) to an administrative body, i.e., Redevelopment Commission of the City of High Point?”

The plaintiff argues the foregoing questions in his brief and cites authority for his position. However, neither of these questions are presented on this record, and they are not decided.

Plaintiff in his brief also refers to the exceptions upon which he bases the assignments of error set out in the record on appeal. The only question presented on this appeal , is whether the demurrer of the defendant should have been sustained on the grounds set out therein that the complaint does not state facts sufficient to constitute a cause of action. G.S. 1-127.

In the case of Gillispie v. Service Stores, 258 N.C. 487, 128 S.E. 2d 762, Bobbitt, J., speaking for the Court, said:

“A complaint must contain ‘(a) plain and concise statement of the facts constituting a cause of action . . .’ G.S. 1-122. ‘The cardinal requirement of this statute ... is that the facts constituting a cause of action, rather than the conclusions of the pleader, must be set out in the complaint, so as to disclose the issuable facts determinative of the plaintiff’s right to relief.’ Shives v. Sample, 238 N.C. 724, 79 S.E. 2d 193. The cause of action consists of the facts alleged. Lassiter v. R. R., 136 N.C. 89, 48 S.E. 642; Skipper v. Cheatham, 249 N.C. 706, 709, 107 S.E. 2d 625; Wyatt v. Equipment Co., 253 N.C. 355, 361, 117 S.E. 2d 21. The statutory requirement is that a complaint must allege the material, essential and ultimate facts upon which plaintiff’s right of action is based. Chason v. Marley, 223 N.C. 738, 28 S.E. 2d 223, and cases cited. ‘The law is presumed to be known, but the facts to which the law is to be applied are not known until properly presented by the pleading and established by evidence.’ McIntosh, North Carolina Practice and Procedure, § 379.

When a complaint alleges defendant is indebted to plaintiff in a certain amount and such debt is due, but does not allege in what manner or for what cause defendant became indebted to plaintiff, it is demurrable for failure to state facts sufficient to constitute a cause of action. Moore v. Hobbs, 79 N.C. 535; Griggs v. Griggs, 213 N.C. 624, 627, 197 S.E. 165.”

Applying the above principles of law to this case, we hold that the complaint does not state facts sufficient to constitute a cause of action, and the trial court acted properly in sustaining the demurrer.

The order sustaining the demurrer gave the plaintiff thirty days “within which to move for leave to amend the complaint.” The defendant does not except to the order and does not complain thereof but on the contrary, asserts in its brief that it was proper and should be affirmed. The plaintiff has not moved to amend the complaint and is not at this time aggrieved by the order.

With commendable frankness, the plaintiff’s attorney on the oral argument admits in substance that the material, essential and ultimate facts upon which the plaintiff’s cause of action is based are not properly alleged.

The judgment sustaining the demurrer is affirmed. If so advised, the plaintiff may move to amend. G.S. 1-131.

Affirmed.

Campbell and Moebis, JJ., concur.