Fulps v. . Mock

The defendant seems to have misconceived the scope (605) of the action. The court below did not "allow plaintiff to abandon his cause of action set out in the complaint and to recover on a special contract set out in the replication." The plaintiff, by his complaint, was seeking to recover the value of his services from 1881 to 1889. On the trial he abandoned any claim for services from 1881 to 1883. To this defendant did not and could not object. To prove his right to recover the value of his services from 1883 to 1889, without being subject to counterclaim for board, and to bar the application of the statute of limitations, the plaintiff introduced evidence which was also admissible to prove the allegations of his complaint. The evidence was pertinent and appropriate. It was not necessary to plead these matters of evidence in the complaint, and that the plaintiff pleaded them in his replication constituted no change or abandonment of his cause of action, which remained as before, for the recovery of the value of his services. The plaintiff did not seek, on the trial, to recover the compensation alleged to have been stipulated for in the express contract. The express contract was put in evidence merely to show why the plaintiff, by defendant's abandonment of it, could recover on a quantum meruit, and why the statute of limitations did not run. The cause of action was so broadly stated, indeed, as to have authorized a recovery by proof either on a quantum meruit or express contract. Lewis v. R. R., 95 N.C. 179. If the allegation was defective, the proper mode of correction (when the substantial facts which constitute the cause of action are stated in the complaint, or can be inferred therefrom by reasonable intendment) is not by demurrer, nor by excluding evidence on the trial, but by a motion, before the trial, to make the averments more definite by amendment. Stokes v. Taylor, 104 N.C. 394; Pom. Civ. Rem., 549; The Code, sec. 261; Moore v. Edmiston, 70 N.C. 510.

No error.

Cited: Roberts v. Woodworking Co., 111 N.C. 433; Grady v. Wilson,115 N.C. 347; Webb v. Hicks, 116 N.C. 603; Webster v. Bailey, 118 N.C. 194;Holden v. Warren, ib., 327; Brittain v. Payne, ib., 991; Roberson v.Morgan, ib., 994; Sams v. Price, 119 N.C. 574; Beach v. R. R., 120 N.C. 507;Lucas v. R. R., 121 N.C. 508; Parker v. Express Co., 132 N.C. 130;Alley v. Howell, 141 N.C. 115; Mitchem v. Pasour, 173 N.C. 488.

(606)