Gibson v. Jones

Campbell, J.

Upon a demurrer, including a demurrer ore tenus, interposed at the outset of a hearing of a case, the pleadings are liberally construed so as to give the plaintiff the benefit of every reasonable intendment in his favor. G.S. 1-151. Sutton v. Duke, 7 N.C. App. 100, 171 S.E. 2d 343 (1969). Seen in such light, the complaint and the note pleaded herein evidence a debt, a promise to pay, failure to pay, refusal to pay after demand therefor, and notations on the instrument which appear to show payments, by parties unknown, to “WCG” on a debt of $6,800. The recitations on the note deal with amounts greatly in excess of the face value of the note. It is not clear, thus, that the notations on the instrument represent acknowledgment by the obligee of payment of the instant debt by the obligors. Payment is an affirmative defense and was not specially pleaded by the defendant. 6 Strong, N.C. Index, 2d, Payment § 4. An affirmative defense may not be raised by demurrer. Leach v. Page, 211 N.C. 622, 191 S.E. 349 (1937). The demurrer was properly overruled.

The contention of the defendant that the trial judge did not make proper findings of fact is well taken. Findings of fact and conclusions of law must be entered by a trial judge in support of a judgment entered by him, in compliance with G.S. 1-185. The conclusions of law arising upon the facts must be stated separately from the findings of fact. Cutts v. Casey, 275 N.C. 599, 170 S.E. 2d 598 (1969). The entry of a verdict by the trial court, sitting without a jury, based on issues of fact answered by the court is not approved. Anderson v. Cashion, 265 N.C. 555, 144 S.E. 2d 583 (1965); Sherrill v. Boyce, 265 N.C. 560, 144 S.E. 2d 596 (1965); Wynne v. Allen, 245 N.C. 421, 96 S.E. 2d 422 (1954).

The judgment in the instant case does not meet the exception stated in Harrelson v. Insurance Co., 272 N.C. 603, 158 S.E. 2d 812 (1968). There it was determined that it could be ascertained from the judgment what facts the court found and what conclusions of law it drew therefrom, since these were stated separately in the judgment. We do not approve of the posing and answering of issues by the court when it sits without a jury, and we reiterate the court’s duty, under G.S. 1-185 (now, see G.S. 1A-1, Rule 52), to enter separate findings of fact and conclusions of law in its judgment.

For error in law there must be a new trial.

New trial.

PahKer and HedricK, JJ., concur.