Ferrell v. Worthington , 226 N.C. 609 ( 1946 )

Winborne, J.

Appellant challenges the action of the court below in' sustaining demurrer ore tenus to each of his alleged causes of action. This brings into focus the pleadings, complaint and reply, filed by plaintiff, and raises the question as-to whether the facts alleged are sufficient to constitute causes of action.

“The office of demurrer is to test the sufficiency of the pleadings, admitting, for the purpose, the truth of allegations of facts contained therein, and ordinarily relevant inferences of fact necessarily deducible therefrom are also admitted, but the principle does not extend to admissions, of conclusions or inferences of law.” Stacy, C. J., in Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761. See also Smith v. Smith, 225 N. C., 189, 34 S. E. (2d), 148, and cases cited.

The statute, G. S., 1-151, as applied in decisions of this Court, requires that the pleading be liberally construed, with a view to substantial justice between the parties, and every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will be rejected as insufficient. Leach v. Page, 211 N. C., 622, 191 S. E., 349; Pearce v. Privette, 213 N. C., 501, 196 S. E., 843. See also Sandlin v. Yancey, 224 N. C., 519, 31 S. E. (2d), 532.

Applying these principles to the pleadings under consideration on this appeal, we are of opinion that the facts alleged are sufficient to state causes of action. In so holding it is not necessary to decide the question of law as to whether items of account charged off and taken out of the active books of account of the partnership, then cease to be partnership assets, and become the individual property of the partners, and we make no decision. But the facts alleged are sufficient (1) to admit of proof that by agreement of the parties the charged off items were expressly segregated from other assets of the partnership, and became individual property before the sale by plaintiff to defendant, and were not to be included in the subsequent bill of sale, and (2) to support an issue of mutual mistake as basis for reformation of the bill of sale in accordance with the allegations of the complaint. This is sufficient to meet the test of demurrer.

Hence, we hold that there is error in sustaining the demurrer ore tenus to both causes of action. Whether plaintilf be able to prove his allegations, remains for another day. He is entitled to the opportunity.

The judgment below is

Reversed.