Jones v. . Furniture Co. , 222 N.C. 439 ( 1942 )

Civil action to recover for alleged breach of express warranty.

Plaintiffs in their complaint, in pertinent part allege:

"3. That on or about May 10, 1941, the plaintiffs purchased from the defendant, and the defendant sold to the plaintiffs, one wine colored sofa-bed for the sum of $16.43.

"4. That at the time of the sale the defendant's salesman explained to the plaintiffs that the bed was a second-hand article; that thereupon the plaintiffs inquired of the defendant's salesman if the bed were free of bedbugs, stating that unless it were free of bugs they were not interested in purchasing it; that the defendant's salesman and employee guaranteed to plaintiffs that the bed was free of bugs; that, relying upon said guarantee, the plaintiffs purchased the bed."

Plaintiff further alleges that in fact "the bed was infested with bugs," and thereby the warranty was breached to their humiliation and damage.

Defendant, in answer filed, admits the sale of the "sofa-bed" to plaintiffs, but denies other material allegations.

Upon trial below there was judgment on verdict for plaintiffs. Defendant appeals therefrom to Supreme Court and assigns error. Demurrer ore tenus to the complaint for that it does not state facts sufficient to constitute a cause of action, C. S., 518, interposed in this Court by defendant, is well taken.

It is contended, and it so appears, that there is no allegation that the defendant made any warranty. The allegation is that "defendant's salesman and employee guaranteed," and "relying upon said guarantee, the plaintiffs purchased the bed." This is far from alleging that the defendant made the warranty.

While it is provided by statute in this State that in the construction of a pleading for the purpose of determining its effect, the allegations therein shall be liberally construed with a view to substantial justice between the parties, C. S., 535, the complaint must allege a cause of action, and the Court will not, under this rule, construe into a pleading that which it does not contain. McIntosh, N.C. P. P., p. 373, section 369.

Demurrer sustained.