Adrian v. Jackson

Bynum, J.

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 defence 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 defendant sundry goods, and that the defendant promised to pay therefor $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 sum certain. That an action of debt would have lain, is clear from the authorities. 1 Chit. Pl., 109; 2 Tenn. R., 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, 64 N. C. Rep., 291 ;

Oates v. Gray, 66 N. C. Rep., 442 ;

Mervin v. Ballard, 66 N. C. Rep., 398 , and similar cases, have no application. None of these were for a sum certain, but the damages claimed were unascertained and uncertain, and therefore required an enquiry by a jury *539 to ascertain and fix the amount. But there is nothing here for the jury to find. The sum claimed is fixed by the contract of the parties themselves and so stated in the complaint. In such cases, upon default, the judgment is final. 1 lidd. Pr., 568.

Gatling v. Smith , cited above, and Garrard v. Dollar, 4 Jones, 175 , illustrate the distinction between actions sounding in damages, and actions for a sum certain. In the former case it is held that in actions sounding in damages, as in assumpsit, covenant and trespass, a judgment by default is only interlocutory, and the amount of damages must be ascertained by a jury. But in the latter it is held, that if the plaintiff's claim for damages is precise and final by the agreement of the parties, or can be rendered certain by mere computation, there is no need of proof, as the judgment, by default admits the claim. An enquiry is necessary only where the claim is uncertain.

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.

Dean v. Barnes, 73 N. C. Rep., 273 .

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, 74 N. C. Rep., 338 . It was there held that the affidavit was insufficient because it did not set forth the grounds of the plaintiff’s belief that the defendant was about to remove from the State. Here, the grounds of belief are set forth, to-wit: that the affiant heard the defendant say on several occasions that he intended shortly to leave the State and remove with his family to the mountains of Georgia, as he was doing nothing here, &c.

*540 Such an affidavit, it would seem, meets the requirements of the statute.

There is no error.

Per Curiam. ' Judgment affirmed.