75 N.C. 536 | N.C. | 1876
The demurrer was treated as being frivolous, and is not denied to have been so. By the demurrer the complaint was admitted to be true, and by the provisions of the Code judgment is to be given as if no defense had been made. To what judgment, then, are the plaintiffs entitled?
The complaint alleges that at a given time and place the plaintiffs sold and delivered to the defendants sundry goods, and that the defendant promised to pay therefore $308.37 at thirty days from date, and they demand judgment for that sum and interest. Prior to the Code, the action might have been debt, because the claim is for a sum certain, due by contract. So the complaint here is substantially an action of debt upon a promise to pay a certain sum. That an action of debt would have lain, is clear from the authorities. 1 Chit. Pl., 109; 2 Term, 28. The promise to pay an agreed sum for "sundry goods," in no case differs from a promise to pay a fixed and agreed price for a horse, a dozen horses, or "sundry horses." The complaint does not sound in damages, but is for a money demand. Therefore, the cases cited, Gatling v. Smith,
Gatling v. Smith, supra, and Garrard v. Dollar,
The judgment rendered in this case is likewise authorized by C. C. P., sec. 217. It is there provided that in all actions on contract for the recovery of money only, if the defendant fail to answer and the complaint is sworn to and served, the clerk shall enter judgment for the amount mentioned in the summons and complaint. Such is the action here, and such the judgment rendered. Dunn v. Barnes,
The decision of this part of the case makes it unnecessary to pass upon the sufficiency of the affidavit for the arrest. The affidavit here is clearly distinguishable, however, from that in Hathaway v. Harrell,
Such an affidavit, it would seem, meets the requirements of the statute. (540)
PER CURIAM. Affirmed.
Cited: Williams v. Lumber Co.,