Farmer-Cole Plumbing Co. v. Wilson Hotel Co., 168 N.C. 577 (1915)

April 14, 1915 · Supreme Court of North Carolina

168 N.C. 577

FARMER-COLE PLUMBING COMPANY v. WILSON HOTEL COMPANY.

(Filed 14 April, 1915.)

1. Judgments — Default and Inquiry — Contracts—Pleadings—Defenses.

In an action to recover upon a contract for work done, with allegation that the plaintiff had performed his part in accordance with its terms and a certain stated sum was due him thereunder, it is essential for the defendant to set up in his answer any damages he may claim as arising from the negligence of the plaintiff in his performance of his contract, or in breach thereof; and where upon failure to file answer a judgment by default and inquiry has been entered, it estops the defendant from claiming damages of the character stated.

2. Judgments — Default and Inquiry — Admissions — Evidence—Counter Demands.

A judgment by default for the want of an answer is an admission of every material and traversable allegation of the declaration or complaint necessary to the plaintiff’s cause of action, and evidence upon the inquiry tending to prove that no right of action existed, or denying the cause of action, is irrelevant and inadmissible.

Appeal by defendant from Whedbee, J., at December Term, 1914, of "Wake.

Civil action beard upon exceptions to report of referee and motion to set aside a judgment by default and inquiry, rendered at December Term, 1913, by CooTce, J., and a judgment of September Term, 1914, confirming tbe report, no exceptions thereto- having been filed.

His Honor declined to set aside this judgment by default and inquiry, but set aside tbe judgment of September, 1914, confirming tbe report, and permitted tbe defendant to file exceptions thereto. Whereupon tbe defendant filed exceptions as follows:

1. That tbe said referee excluded evidence of tbe cost and expenses incurred by the defendant in placing tbe fixtures in position and in installing tbe same, tbe plumbing amounting to $450.

2. Tbe referee excluded evidence that tbe plaintiff bad performed its work so negligently and carelessly, and bad failed to comply with tbe contract to an amount in excess of $250.

3. That tbe referee found that tbe defendant was indebted to tbe plaintiff in any sum whatever.

And in support of these said exceptions tbe defendant refers to tbe affidavit of S. A. Woodard filed in this case at this term, and bis motion to set aside tbe judgment of December, 1913.

Upon bearing tbe exceptions, bis Honor overruled them and by consent allowed a credit of $55 and adjudged that tbe plaintiff recover $648.87, with interest and costs.

Tbe defendant excepted and appealed.

J. C. Little, Allen J. Ba/rwick for plaintiff.

8. A. Woodard, Winston & Biggs for defendant.

BbowN, J.

Tbe plaintiff alleges in tbe complaint:

(1) That heretofore, towit, on or about 14 Septeniber, 1912, tbe plaintiff contracted witb tbe defendant to ins'tall tbe plumbing and furnish tbe roughing-in rhaterial in tbe annex of tbe New Briggs Hotel in tbe city of Wilson, county of Wilson, State of North Carolina, at tbe agreed price of $1,650.

(2) That in pursuance of said contract tbe plaintiff installed plumbing and furnished roughing-in material and completed said work according to contract on tbe New Briggs Hotel, and fully complied witb its part of tbe contract.

(3) That from time to time tbe defendant paid to said plaintiff tbe sum of about $1,200, leaving due and unpaid tbe sum of $450.

(4) That over and above the work on tbe contract hereinbefore referred to, there was extra work done on tbe said hotel, and materials furnished; said work and materials being of the value of $253.87.

As we understand this case, tbe exceptions relate exclusively to matters foreclosed by tbe judgment by default and inquiry, which are set out in sections 1, 2, 3 of tbe complaint. These sections allege a contract to install plumbing in defendant’s hotel at an agreed price, that tbe work was properly done in pursuance of and in accordance witb tbe contract, that so much was paid on it, and that there is a balance due of $450 on tbe contract.

Tbe exceptions are confined to alleged error in excluding evidence as to costs and expenses incurred by defendant in placing tbe plumbing in and installing tbe same, and in excluding evidence of tbe negligent manner in which tbe plaintiff contractor bad done its work.

These are matters of defense relating to tbe proper performance of tbe contract, and should have been properly pleaded. Tbe judgment by default and inquiry for want of an answer bars defendant from setting-up such defense upon tbe inquiry as to damages.

Tbe referee very properly confined tbe inquiry under those allegations of tbe complaint to tbe amount due under tbe contract.

Tbe default is an admission of every material and traversable allegation of tbe declaration or complaint necessary to tbe plaintiff’s cause of action. 23 Oyc., 752.

It admits all tbe material averments properly set forth in tbe complaint, and of course everything essential to establish tbe right of tbe plaintiff to recover. Any testimony, therefore, tending to prove that no right of action existed, or denying tbe cause of action, is irrelevant and inadmissible. Garrard v. Dollar, 49 N. C., 176; Lee v. Knapp, 90 N. C., 171; Blow v. Joyner, 156 N. C., 140; Graves v. Cameron, 161 N. C., 550.

Affirmed.