Pilot Real Estate Co. v. Fowler

Brogden, J.

The effect of the judgment of the Superior Court of Forsyth County was to overrule the demurrer ore tenus, which had previously been sustained by the County Court of Forsyth County.

The initial question to be considered is whether or not the demurrer should have been overruled.

A demurrer to an answer admits as true every material fact alleged in the answer to the same extent and with the same force as a demurrer to a complaint.

Trust Co. v. Wilson, 182 N. C., 168 .

The allegations of the answer constituting a counterclaim or cross-action are loosely drawn, but it is alleged that after the discovery of the shortage in quantity the parties made a new contract whereby the plaintiff and Stockton “promised that they would take the property hack and pay these defendants the money they had paid on said property or would furnish them the number of feet which these defendants had expected.” The plaintiff demurs ore temas to this new contract for that the alleged contract is: (1) within the Statute of Frauds, and (2) without consideration. Both grounds of demurrer are untenable. Yer-bal contracts relating to the sale or. conveyance of land are not void but voidable, and the Statute of Frauds must be pleaded. It cannot be set up by a demurrer.

Curtis v. Lumber Co., 109 N. C., 401 ;

Loughran v. Giles, 110 N. C., 423 ;

Williams v. Lumber Co., 118 N. C., 928 ;

Hemmings v. Doss, 125 N. C., 400 ;

Stephens v. Midyette, 161 N. C., 323 .

The answer does not disclose whether the special contract is verbal or written. Conceding that the contract alleged is verbal and executory, and therefore requiring a consideration to support it, yet a failure of consideration is a defense and must be pleaded. In Godwin v. Gardner, 182 N. C., 97 , Stacy, J., declares the law to be that: “Mátters set up in defense, or as a bar to plaintiff’s suit and requiring proof, may not be considered upon a demurrer.”

The judgment of the Superior Court must, therefore,. be Affirmed.