Smith v. Eastern Building & Loan Ass'n
Supreme Court of North Carolina
Civjl actioN, tried before Brown, J., arid a jury, at Fall Term, 1894, of Craven Superior Court, after exceptions by both parties to the report of referees (to whom the action had been sent under The Code) and a demand by the defendant for a jury trial.
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Civjl actioN, tried before Brown, J., arid a jury, at Fall Term, 1894, of Craven Superior Court, after exceptions by both parties to the report of referees (to whom the action had been sent under The Code) and a demand by the defendant for a jury trial. The complaint was as follows (omitting the second clause of action which was abandoned): “ I. That the defendant is a corporation duly incorporated under the laws of the State of New York, as plaintiff is informed and believes. “II. That on the 23rd day of December, 189-, the defendant entered into a contract with the plaintiff, a copy of…
1Opinion of the Court
Aveey, J.:
It is a well settled legal principle, repeatedly recognized by this Court, that a recovery cannot be had upon proof without corresponding allegations. McLaurin v. Cronly, 90 N. C., 50; Abernathy v. Seagle, 98 N. C., 553; Greer v. Herren, 99 N. C., 492. The plaintiff in the progress of the trial abandoned his second cause of action entirely, as well as that founded on the breach of contract alleged in section 5 and 6, and the repudiation of it declared upon in the llth section of his first cause of action, while the defendant conceded the justice of the demand embodied in section 7…
2Cases cited5 opinions
- McLaurin v. . CronlySupreme Court of North Carolina · 1884
- Conley v. Richmond & Danville RailroadSupreme Court of North Carolina · 1891
- Willis v. BranchSupreme Court of North Carolina · 1886
- Abernathy v. . SeagleSupreme Court of North Carolina · 1887
- Greer v. . HerrenSupreme Court of North Carolina · 1888
3Cited by3 opinions
- Roberson v. . MorganSupreme Court of North Carolina · 1896
- Willis v. . BranchSupreme Court of North Carolina · 1886
- Christmas v. . HaywoodSupreme Court of North Carolina · 1896