Morton G. Thalhimer, Inc. v. Abrams, 232 N.C. 96 (1950)

May 10, 1950 · Supreme Court of North Carolina

232 N.C. 96

MORTON G. THALHIMER, INC., v. AARON ABRAMS.

(Filed 10 May, 1950.)

Pleadings § 31—

A “further defense” which contains averments of fraud but which is insufficient to state a cause of action against plaintiff for actionable fraud is properly stricken upon motion when the averments are irrelevant to the issue between plaintiff and defendant.

Appeal by defendant from Stevens, J., at December Civil Term, 1949, of New Hanoveb.

Civil action to recover on written contract commissions on rentals as compensation for negotiating a lease. Defendant denies all allegations of complaint. While action was pending, tbe leased premises burned. Thereafter plaintiff, by leave of court, filed an amendment to its complaint so as to include in its claim commissions on rents up to date of tbe fire. Defendant, answering, also denies tbe allegations of tbe amendment, and sets up wbat be terms “a further defense.” Plaintiff moved to strike tbe allegations of tbe further defense for that they are “irrelevant, immaterial and impertinent, for even taken as true tbe said allegations of tbe further defense would neither work a defense for the defendant nor give him a cause of action nor counterclaim against tbe plaintiff.” Tbe motion was allowed, and from order in accordance therewith, defendant appeals to tbe Supreme Court and assigns error.

Harriss Newman and Rountree & Rountree for plaintiff, appellee.

Emmett II. Bellamy and Isaac 0. Wright for defendant, appellant.

Pee Curiam.

While it appears from careful reading and consideration of the matters set up in defendant’s further defense that there are averments of fraud, it is manifest that these averments are insufficient to state a cause of action against plaintiff for actionable fraud. And what the effect of the averments is in respect of the lessees and their assignee is a matter foreign to the issue between plaintiff and defendant. Hence in the order striking the further defense, no error is made to appear.

Affirmed.