Cotton Mills v. Manufacturing Co.

Stacy, 0. J.

As tbe preliminary representations constitute a part of the alleged fraud, the motion to strike was properly denied.

Trust Co. v. Dunlop, 214 N. C., 196 , 198 S. E., 645 ;

Hildebrand v. Tel. Co., 216 N. C., 235 , 4 S. E. (2d), 439 . The action is one sounding in tort.

The demurrer of the individual defendants was likewise properly overruled. It is alleged that they were officers and agents of the corporate defendant and “actually caused and participated in the wrongful acts” of their principal, which are specifically set out. This saves the complaint from fatal infirmity as to the individual defendants.

S. v. Trust Co., 192 N. C., 246 , 134 S. E., 656 . McIntosh on Procedure, 455.

The sufficiency of the facts alleged to make out a case of actionable fraud on the part of the corporate defendant is not challenged.

Hill v. Snider, 217 N. C., 437 ;

Griggs v. Griggs, 213 N. C., 624 , 197 S. E., 165; Stone v. Milling Co., 192 N. C., 585 , 135 S. E., 449 . If the individual defendants actually caused and participated in these alleged wrongful acts, it must follow that they also participated in the alleged fraud and deceit. At least, such is the reasonable intendment of the complaint.

Foy v. Stephens, 168 N. C., 438 , 84 S. E., 758 . “It is not necessary that the word ‘fraud’ be used in the pleadings, nor that it be alleged in direct terms, if the facts averred contain all the essential elements of fraud.”

Petty v. Ins. Co., 210 N. C., 500 , 187 S. E., 816 .

It will be readily conceded that a characterization of “fraud” without any facts to support it is a mere brutum fulmen. Dixon v. Green, 178 N. C., 205 , 100 S. E., 262 ;

Baker v. R. R., 205 N. C., 329 , 171 S. E., 342 ;

Andrews v. R. R., 200 N. C., 483 , 157 S. E., 431 . On the other hand, a complaint which alleges facts from which the fraudulent intent may reasonably be inferred, or presumed, or necessarily results, will be upheld as against a demurrer.

Dixon v. Green, supra; Foy v. Stephens, supra; S. v. Bank, 193 N. C., 524 , 137 S. E., 593 ; 12 R. C. L., 417.

When a case is presented on demurrer, we are required by the statute, O. S., 535, to construe the complaint liberally, “with a view to substantial justice between the parties,” and in compliance with this provision we have adopted the rule “that if in any portion of it or to any extent it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can fairly be gathered from it, the pleading *563 will stand, however inartificially it may have been drawn or however uncertain, defective and redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader.”

Dixon v. Green, supra; Brewer v. Wynne, 154 N. C., 467 , 70 S. E., 947 ;

Lee v. Thornton, 171 N. C., 209 , 88 S. E., 232 ;

Benn v. R. R., 170 N. C., 128 , 86 S. E., 964 .

“Upon examination of a pleading to determine its sufficiency as against a demurrer, its allegations will be liberally construed with a view to substantial justice, C. S., 535, and every reasonable intendment and presumption will be given the pleader, and the demurrer overruled unless the pleading is wholly insufficient” — First headnote, Leach v. Page, 211 N. C., 622 , 191 S. E., 349 .

A pleading is not to be overthrown by demurrer unless it be wholly wanting in sufficiency.

Ins. Co. v. McCraw, 215 N. C., 105 , 1 S. E., (2d), 369;

Pearce v. Privette, 213 N. C., 501 , 196 S. E., 843 ;

Blackmore v. Winders, 144 N. C., 212 , 56 S. E., 874 .

Viewing the complaint with that degree of, liberality which the law requires, it appears to be good as against the demurrer.

Hartsfield v. Bryan, 177 N. C., 166 , 98 S. E., 379 ;

Hoke v. Glenn, 167 N. C., 594 , 93 S. E., 807 .

Affirmed.