Nash v. . Ferrabow

20 S.E. 458 | N.C. | 1894

The defendant moves to dismiss in this Court because the complaint does not state a cause of action. This is one of the two objections which can be taken in this Court, when not made below. Rule 27 of this Court. Indeed, the Court take it ex mero motu. Hagins v.R. R., 106 N.C. 537, and other cases cited in Clark's Code (2 Ed.) p. 698. We are of opinion that the objection is well taken. The paper-writing relied on as the foundation of the action is too vague and indefinite to fix the defendant with liability. It recites that the agreement is made with them as "the properly authorized officers of the Stem Citizens Association." If contracted with as officers, clearly the association, and not the officers personally, were to be liable. Besides, it further provides, as if to guard against personal liability, "1,000 is already subscribed, and we pledge our best efforts to secure the remaining $500." It does not appear whether the association was incorporated or not. As the writing was signed by "the properly authorized officers" of the "Stem Citizens Association," it would seem that it was so. If so, the corporation and not these defendants should have been sued. If not incorporated, there is no proper averment that it was a partnership. A mere allegation that the defendants were "members of said Stem Citizens Association, and thereby became liable," is not a sufficient allegation of partnership, and without such it is difficult to see how liability could be incurred in the absence of allegation of incorporation and of fraud in the conduct of defendants as officers of such (306) corporation. Furthermore, the paper-writing specifies no term other than "$1,500 per annum, payable quarterly." The complaint does not aver services for any specified time, nor indeed any service beyond what might be inferred from the allegation that "plaintiff faithfully performed his part of said agreement." For how long a time is not stated. If for a quarter, then the payment he admits in the complaint has overpaid him and he has stated no cause of action. There is no presumption of law based upon the terms of the alleged agreement that he has served beyond the minimum stipulation of a quarter. If the plaintiff has rendered service to these defendants, or others belonging to said association, there is nothing to defeat his recovery upon a quantum meruit against each for the services rendered him. The attempted contract, being too vague and indefinite, is simply a nullity and is in the way of neither the plaintiff nor the defendants.

Action dismissed.

Cited: Hines v. Vann, 118 N.C. 7; Fowler v. Fowler, 131 N.C. 171.