Randolph v. Schuyler , 18 N.C. App. 393 ( 1973 )

BALEY, Judge.

Defendant takes the position that the instrument dated 22 April 1960, which assigned to plaintiff one-third of the proceeds of the insurance policy on the life of her husband in consideration of the services plaintiff had rendered as their attorney, should be excluded from evidence because it was not within the issues raised by the pleadings. We cannot agree.

Under the notice theory of pleading as set out in Rule 8 (a), Rules of Civil Procedure, a statement of claim is adequate if it gives sufficient notice of the claim “ ‘to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought. . . .’ ” Sutton v. Duke, 277 N.C. 94, 102, 176 S.E. 2d 161, 165.

In our view the complaint comes within these guidelines and the issues raised are sufficient to permit the introduction of evidence concerning the 22 April 1960 assignment.

The complaint was based upon a contingent fee contract executed on 11 September 1959 and asserted that plaintiff had fulfilled his obligations under such contract. Performance by the plaintiff or lack of it is an issue raised by the pleadings. The 22 April 1960 assignment was evidence of compliance with the September contract and is competent upon this issue. In fact, the April assignment refers to and approves the services rendered by the plaintiff and confirms the understanding of the parties concerning the attorney fee. It would be difficult to show more complete satisfaction on the part of defendant and her husband with the arrangement for the attorney fee than their written assignment of the proportionate part of the proceeds of the life insurance coverage to which they agreed at the time that plaintiff was entitled. If for no other reason, the 22 April 1960 document should be admitted in evidence as an admission of defendants. 2 Stansbury, N. C. Evidence, § 167, § 178 (Brandis Revision 1973).

Defendant also assigns as error the entry of summary judgment awarding recovery to the plaintiff.

Rule 56 (c) of the Rules of Civil Procedure provides a standard for summary judgment:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.”

In McNair v. Boyette, 282 N.C. 230, 234-35, 192 S.E. 2d 457, 460, this purpose for summary judgment is set out:

“The purpose of summary judgment can be summarized as being a device to bring litigation to an early decision on the merits without the delay and expense of a trial where it can be readily demonstrated that no material facts are in issue. Two types of cases are involved: (a) Those where a claim or defense is utterly baseless in fact, and (b) those where only a question of law on the indisputable facts is in controversy and it can be appropriately decided without full exposure of trial.”

In this case the defendant admits the execution of the 11 September 1959 contingent fee contract and the execution of the 22 April 1960 assignment of one-third of the proceeds from the insurance recovery. She admits the receipt of $13,000.00 as payment due under the insurance contract and that neither she nor her husband had paid the plaintiff anything for his services in this matter. There is no dispute about the fact that the efforts of the plaintiff resulted in the reinstatement of the insurance policy from which defendant eventually secured her recovery. Defendant contends in her affidavit that the 11 September 1959 contract should be interpreted to apply only to a claim for periodic income payments arising from her husband’s disability and that the plaintiff did not secure any such payments and is not entitled to his fee. This contention is refuted by the express provisions of the contract and by the later assignment of one-third interest in the life insurance proceeds.

We hold that summary judgment was properly granted, and judgment is affirmed.

Affirmed.

Judges Campbell and Britt concur.