A. L. Webb & Sons v. Hicks

The first thing called to our attention in considering this case is the allegations of plaintiffs' complaint, and it was admitted by the learned counsel who argued the case in this Court not to be a very clear statement of plaintiffs' cause of action. But they contended that it was a defective statement of a cause of action and not a statement of a defective cause of action; that a cause of action is stated with sufficient clearness and certainty not to mislead defendants, but to give them notice of plaintiffs' claim, when and how it was created and how they became liable, and that, this being so, the Court ought to sustain the complaint, and cite Stokes v.Taylor, 104 N.C. 394; Fulps v. Mock, 108 N.C. 601. These cases went to the very verge, but we think they were allowable under the liberal spirit of The Code, and we do not propose to disturb them.

But we do not think they sustain the complaint in this case. They properly named all the parties and they stated fully the facts constituting a cause of action. Though they declared on a special contract they stated facts that entitled them to recover on the general or implied contract, for services performed. The form of actions having been abolished by The Code, the Court did not stop to consider (604) whether, under the old practice, they should have been actions of debt or actions of assumpsit, but took up the facts and found that a cause of action was stated entitling the plaintiffs to recover and sustained the ruling of the court below in so holding. These were cases where a cause of action was stated and is called a defective statement of a cause of action, inw hich [in which] the courts will lend their aid in putting a proper construction on the facts stated.

But in our opinion the complaint in this case fails to state a cause of action, and in this lies the distinction between this case and the cases ofStokes v. Taylor and Fulps v. Mock, supra. This case does not state facts constituting a cause of action.

Chief Justice Shepherd, in the case of Lassiter v. Roper, 144 N.C. 17, in a well-considered opinion, says, quoting from the opinion of ChiefJustice Kent, 1 Johnson, 453, "I entertain a decided opinion that the established principles of pleading, which compose what is called its science, are rational, concise, luminous and admirably adapted to the investigation of truth and ought consequently to be very carefully touched by the hand of innovation." "It was but in keeping with the spirit of these views that our present system of civil procedure was framed and enacted, and we find this Court, very shortly after its adoption, repudiating the idea that loose and uncertain pleadings would be tolerated." In Crump v. Mims, 64 N.C. 767, the Court said, "We take occasion here to suggest to pleaders that the rules of common law as to the pleading, which are only the rules of logic, have not been abolished by The Code," quoting to sustain this position Parsley v.Nicholsson, 65 N.C. 210; Oates v. Gray, 66 N.C. 442; Vass v. B. L. Association, 91 N.C. 55. "It was a false notion entertained by some of the legal profession that the Code of Civil Procedure is without order or certainty and that any pleading, however loose and irregular, may be upheld. On the contrary, while it is not perfect, it has both logical order, precision and certainty, when it is properly (605) observed. Bad practice too often tolerated and encouraged by the courts brings about confusion and unjust complaints against it. It is still essential to state the facts. The Code, sections 233-243, which provides that there must be a plain, concise statement of the facts, constituting a cause of action." Rountree v. Brinson, 98 N.C. 107. "A complaint which merely states a conclusion of law (that is, that the defendant is indebted to the plaintiff and that the debt has not been paid) is demurrable both at common law and under The Code."

We have quoted thus extensively from the case of Lassiter v. Roper,114 N.C. 17, for the reason that it is the latest exposition we have from this Court on the question of defective pleadings and because it appears to have been fully considered by the Court and ably and exhaustively treated in the opinion. And because we think it controls, and indeed disposes of the case under consideration.

It is not for us to say what rights the plaintiffs might have under a proper conception of their case and under proper pleadings, treating the creditors of McDiarmid Bros., who signed Exhibit "A" as a partnership. It is only for us to say there is no error in the judgment of the court below.

No Error.

Cited: Farthing v. Carrington, ante 327, 335; Webb v. Hicks,123 N.C. 244; S. c., 125 N.C. 201.

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