Harris Clay Co. v. Carolina China Clay Co., 205 N.C. 830 (1933)

Sept. 20, 1933 · Supreme Court of North Carolina

205 N.C. 830

THE HARRIS CLAY COMPANY v. CAROLINA CHINA CLAY COMPANY et al.

(Filed 20 September, 1933.)

Appeal by defendants from Clement, J., at May Term, 1933, of JACKSON.

Civil action for damages arising ex contractu and ex delicto. Demurrer interposed on the grounds (1) that the complaint does not state facts sufficient to constitute a cause of action and (2) for mis-joinder of parties and causes.

From a judgment overruling the demurrer, the defendants appeal.

McBee & McBee, Ban K. Moore, McKinley Edwards and E. P. Still-well for plaintiff.

Berry & Oreen, Morgan <& Gardner and Carter & Carter for defendants.

Per Curiam.

Tbis is the same ease that was here at the Spring Term, 1932, on a question of venue, reported in 203 N. C., 12.

The second ground of the demurrer seems to have been abandoned, and it was properly overruled on the first. The complaint contains allegations of damages arising ex delicto, which may have been overlooked, as they are not debated on brief; and a demurrer will be overruled unless the complaint is wholly insufficient. Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874.

The question of the measure of plaintiff’s allowable recovery is not presently presented. Pemberton v. Greensboro, 203 N. C., 514, 166 S. E., 396.

Affirmed.