Opinion · Supreme Court of North Carolina
Gorman v. . Bellamy
82 N.C. 496
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1880-01-05
- Topic
- employee-benefits-and-executive-compensation
•Smith, C. J. The issue raised upon the demurrer is alone presented for decision upon the appeal. We are of opinion if the matter specified in the demurrer does in law constitute a condition precedent and essential to the recovery, it is sufficiently averred in the general terms used in the complaint, to-wit, that the work for which compensation is de *499 manded was done “in pursuance of the liberty and privilege granted to them (the lessees) m s aid lease as above set forth,” within the requirements of section 93 of the code, and the demurrer is not sustained in this regard. These words clearly import the source from which authority to make the improvements is derived, and the restrictions imposed upon it.
Citator
UpLaw has not yet analyzed Gorman v. . Bellamy. The absence of a flag is not a finding that it is good law.
- Cited by
- 18 opinions
The defendant in 1867 leased to plaintiff a city lot, with a covenant that the lessees might make certain improvements, "but they shall preserve unimpaired" the entrance and right of way from an alley to the rear of the premises, and providing for the valuation of and payment for the improvement at the expiration of the lease;Held, in an action brought by the lessees to recover the value of the improvements;
(1) That under section 93 of the code, a complaint which alleged that the improvements were made "in pursuance of the liberty andPage 497privilege granted to the lessees," was sufficient without an express allegation that the rear entrance was preserved unimpaired.
(2) Such preservation is not a condition precedent, but a proviso, and if it had not been complied with, this should be set up in the answer.
(3) The tendency is to relax the stringency of the common law rule, which allowed no recovery upon a special unperformed contract nor for the value of the work because of the special contract, and to imply a promise to pay such remuneration as the benefit conferred is really worth.(Moore v. Edmiston,70 N.C. 510;W. R. R. R. Co. v. Robeson, 5 Ired., 391, cited and approved.)
The complaint states that the lessees entered into the possession and occupancy of the said demised premises on the first day of October, 1867, and that "in pursuance of the liberty and privilege granted to them in said lease, as above set forth" (referring to the said covenant previously recited) "did erect and build on said premises certain additions and improvements, outside of the main building, of great value, to wit, the sum of four thousand five hundred dollars."
The lessee, Davis, in 1868, assigned and conveyed his interest and share under the lease to the plaintiffs, Edward Kidder and James Walker. The action is to recover compensation for said improvements.
The defendant, Bellamy, demurs to the complaint, for that, as it appears upon its face, the privilege and license to make the additions and improvements mentioned in the complaint were granted upon the condition precedent, that in making said additions and improvements, the said lessees should preserve unimpaired the entrance and right of way leading from Toomer's alley to the back part of the premises of the said McLin, and the plaintiffs have not alleged nor shown in their complaint that the said lessees, Gorman and Davis, in making said additions and improvements did preserve unimpaired the said entrance and right of way." Demurrer overruled, judgment for plaintiffs, appeal by defendants.
"The subtle science of pleading heretofore in use," remarks BYNUM, J., delivering the opinion inMoore v. Edmiston,70 N.C. 510, "is not merely relaxed, butabolished by the code, and the forms of pleading in civil actions, and the rules by which their sufficiency is to be determined are those prescribed in the code. C. C. P., § 91. The new system, thus inaugurated, is such, thatfew if any of the ancient rules are nowapplicable. All that is required of the plaintiff is a plain and concise statement of the facts constituting the cause of action; and of the defendant, a general or specific denial of each material allegation of the complaint controverted in the answer."Jones v. Mial, ante, 252.
But we do not wish to be understood as conceding that the preservation of the open way to the rear is so annexed to the license to build and improve as to constitute a condition precedent, and disable the lessees from seeking any compensation for their outlay in putting up additions toPage 500the buildings then upon the lot. The covenant entitles them to claim, not full reimbursement of moneys expended in making the improvements, but their value to be ascertained in the mode appointed, and as the contract seems to contemplate, reduced by the injury to the premises resulting from erecting them. The clause in question seems rather to be a proviso than a condition of defeasance which need not be stated in the declaration, for this, says Mr. CHITTY, ought to come from the other side.Railroad v. Robeson, 5 Ired., 391; 1 Saunders, 334, note 2.
The inclination of the courts is to relax the stringent rules of the common law which allows no recovery upon a special unperformed contract itself, nor for the value of the work done because the special excludes an implied contract to pay. In such case if the party has derived any benefit from the labor done, it would be unjust to allow him to retain that without paying anything. "The law therefore implies a promise," say the court, "to pay such remuneration as thebenefit conferredis really worth.Dumott v.Jones, 23 How., (U.S.,) 220;Monroe v. Phelps, 8 Ellis Black, 739.
But for the reason that a compliance with all the requirements of the covenant accompanying the grant of license is sufficiently alleged in the complaint, the demurrer resting on false premises must be overruled, and the judgment of the court below affirmed. As there are other defendants who have answered and the issues as to them are still open, the judgment of this court will be certified to the end that further proceedings be had in the cause in the superior court of New Hanover, and it is so ordered.
No error. Affirmed.Page 501