Tbe case comes to us upon appeal from a judgment sustaining a demurrer to tbe complaint on tbe ground tbat it did not state facts sufficient to constitute a cause of action, and for improper joinder of causes of action.
Tbis makes it necessary tbat we examine tbe allegations of tbе complaint, under tbe rule requiring liberal construction, in order to determine wbetber a cause of action bas been sufficiently set out. Tbe material facts alleged may be stated as follows :
As a first cause of action, it is alleged tbat plaintiffs are residents of Eobeson County, and tbat defendants reside in Anson County; tbat on and prior to 15 August, 1934, Fred J. Cox, an attorney of Wadesboro, represented plaintiffs in tbe matter of tbe sale of certain real property in Wadesboro; tbat plaintiff Herbert C. Griggs and defendant H. Battle Griggs (wbo are brothers) eacb owned an interest in tbe estates of Henry Haynie and Sarab A. Griggs, and tbat dеfendant bad retained tbe same attorney to collect bis interest in these estates. Tbe plaintiffs further allege in their complaint:
“Tbat on or about 15 August, 1934, the-plaintiffs, at tbe instance of tbe said Cox, wbo was acting for tbe defendant H. Battle Griggs, or within tbe scope of bis authority as attorney for H. Battle Griggs, executed a certain paper writing in tbe form of a deed which, as they thought and believed, conveyed only their interests in tbe Wadesboro property. Tbat tbe sаid paper writing was prepared by tbe said Cox at tbe instance of tbe defendant H. Battle Griggs, and when tbe said Cox undertook to read same to tbe plaintiff Herbert C. Griggs, be read only tbe part of said paper writing purporting to convey tbe Wadesboro property, told tbe said plaintiff tbat tbe papеr writing was a deed for tbe Wadesboro property, tbat it was perfectly safe and all right for him to sign same, advising him to sign it immediately, have bis wife to sign it, and return it to him at оnce as be was in a burry to get back to Wadesboro.
“Tbat at tbe same time and as evidence of tbe debt due plaintiff Herbert C. Griggs for tbe purchase price of said real estate interests, tbe said Cox delivered to tbe plaintiff Herbert 0. Griggs four promissory notes under seal in tbe sum of $500.00, eacb dated 15 August, 1934, and maturing оn 15 November, 1934, 1935, 1936, and 1937, bearing interest from maturity of each at tbe rate of six per cent per annum, and tbat Fred J. Cox requested tbis plaintiff to endorse tbe notе due 15 November, 1937, and retained and kept same as bis compensation for services rendered or to be rendered tbe plaintiff as bis attorney.
*626 “That аs a result of tbe fraud and deceit of the defendant H. Battle Griggs, by and through the said Cox, being lulled into security by their confidence in the said Cox to the knowledge of II. Bаttle Griggs, these plaintiffs did not read the said paper writing and signed same without reading it, upon the advice of the said Cox, who was acting for the said H. Battle Griggs, and unknown to these plaintiffs the said paper writing undertook to convey.to the defendant H. Battle Griggs, not only the 'Wadesboro property hereinbefore mentioned, but also all right, title and interest of the plaintiffs in and to the property of every kind and description, including real, personal and mixed, that may be cоming to them or either of them from the estate of Henry Haynie, deceased, or the estate of Sarah A. Griggs, deceased, which they would not have cоnveyed by said paper writing except as a result of the fraud and deceit practiced upon them.”
By this action plaintiffs are seeking to have thе deed executed by them on 15 August, 1934, reformed by striking from the description of the property therein conveyed plaintiffs’ interest in the Haynie and Griggs estates, and this оn the ground of mistake on the part of the plaintiffs and fraud on the part of defendants.
Dameron v. Lumber Co.,
It is an elementary rule of pleading that the mere allegation that an act was induced by fraud is insufficient. The facts constituting the fraud must be set out with such particularity as to show all the necessary elements of actionable fraud which would entitle thе pleader to relief. The facts relied upon to constitute fraud, as well as the fraudulent intent, must be clearly alleged.
Willis v. Willis,
There is no allegation of fraudulent intent on the part of the defendants or the attorney. No mistake on the part of either is alleged. It does not appear by whom the notes were signed, but it is stated that they
*627
were received by plaintiff in considerаtion of “said” real estate interest, apparently referring to the real estate conveyed by the deed. The failure of the plaintiff to read thе paper writing he signed and to understand what he was conveying must be attributed to his own negligence. No trick or device is alleged.
Lumber Co. v. Sturgill,
For а second cause of action plaintiffs allege: “That the defendant H. Battle Griggs is indebted to the plaintiff Herbert C. Griggs in the sum of $500.00, with interest on same from 15 November, 1934; $500.00, with intеrest from 15 November, 1935; and $500.00, with interest from 15 November, 1936.”
The second cause of action attempted to be set up in the complaint is equally vulnerable. It is not alleged in what manner or for what cause the defendant H. Battle Griggs is indebted to the plaintiff Herbert C. Griggs. A complaint which merely states that the defendant is indebtеd to plaintiff, and that the debt is due, is demurrable. McIntosh Prac. & Proc., 388-9;
Moore v. Hobbs,
The inclusion in the judgment of an order striking out the сomplaint, because it constituted a material change from the cause of action alleged in a former complaint as to which a demurrеr had previously been sustained, becomes immaterial at this time, since the only pleading of the plaintiffs before the court has been overthrown by the judgment sustaining the demurrer. See
Zagier v. Zagier,
The judgment sustaining the demurrer is
Affirmed.