DAVID W. MITCHEM v. C. J. PASOUR et al.
(Filed 9 May, 1917.)
1, Pleading's — Interpretation.
Allegations of ¿ complaint are construed liberally.in tbe pleader’s favor with a view to substantial justice between tbe parties, and where tbe question of jurisdiction between tbe Superior Court and tbat of a justice of tbe peace arises, depending upon tbe amount involved, and wbetber tbe action is ex contractu or ex delicto, tbe courts are disposed to construe tbe complaint in favor of tbe jurisdiction cbosen.
2. Same — Tort—Superior Court — Jurisdiction.
An action by tbe landlord against bis tenant, alleging tbe tenancy, tbe nonpayment of rent, and a conversion of tbe crops raised on tbe land, successively joining in third parties claimed to have received tbe money, but as to whom tbe action was nol prossed, when brought in tbe Superior Court-for an amount less than $200, will be regarded as an action sounding in tort, and tbe jurisdiction will be sustained.
Civil actioN, tried before Justice, J., at September Term, 1916, of GASTON.
This is an action to recover money, commenced in tbe Superior Court, and tbe question presented by tbe appeal is wbetber it is an action in tort or in contract.
Tbe action was commenced against tbe defendant Pasour, and thereafter tbe First National Bank of Gastonia was made a party defendant.
Tbe plaintiff alleges in tbe original complaint tbat tbe defendant Pasour rented a farm from bim for tbe year 1911 and agreed to pay ' $200 as rent; tbat no part of tbe rent bad been paid except $25; tbat demand bad been made for tbe payment of tbe rent, wbicb bad been refused; tbat tbe defendant Pasour wrongfully and unlawfully con-' verted and disposed of all tbe crops raised on tbe land during tbe year 1911; tbat said defendant took a part of tbe proceeds of tbe crop, wrongfully converted, amounting tó $134.16, and deposited it in tbe First National Bank of Gastonia; tbat Pasour was insolvent, and in tbe prayer for relief tbe plaintiff demands judgment against Pasour' and tbe bank for $134.16, and tbat tbe bank be restrained from paying tbe same to said Pasour.
After tbis complaint was filed a nol. pros, was entered as to tbe defendant bank, as it was made to appear tbat tbe money bad been withdrawn from tbe bank at tbe time tbe action was commenced, and S. M. Robinson was then made a party defendant.
Tbe plaintiff then filed another complaint alleging substantially tbe same facts alleged in tbe original complaint, with tbe addition tbat tbe defendant Pasour bad placed said sum of $134.16 in tbe bands of tbe defendant Robinson.
*488Thereafter a nol. pros, was entered as to the defendant Robinson, and at a subsequent term of court, the action being then for trial, his Honor, upon motion of the defendant, entered a judgment dismissing the action for want of jurisdiction, upon the ground that it was an action in contract and within the jurisdiction of a justice of the peace.
■ Plaintiff excepted and appealed.
Carpenter & Carpenter for plaintiff.
J. F. Flowers for defendant.
Allek, J.
The uniform rule under our system of pleading is to construe the allegations liberally in favor of the pleader, with a view to substantial justice between the parties (Brewer v. Wynne, 154 N. C., 471), and “when the action can be fairly treated as based either in contract or in tort, the courts, in favor of jurisdiction, will sustain the election made by the plaintiff” (Schulhofer v. R. R., 118 N. C., 1096, approved in White v. Ely, 145 N. C., 36) ; and further: “If the complaint is so worded that under the liberal procedure of The Code it could have been construed to be either an action on an express or implied contract (Stokes v. Taylor, 104 N. C., 394; Fulps v. Mock, 108 N. C., 601; Holden v. Warren, 118 N. C., 326) or either in tort or contract (Brittain v. Payne, 118 N. C., 989, Schulhofer v. R. R., 118 N. C., 1096; Timber Co. v. Brooks, 109 N. C., 698; Bowers v. R. R., 107 N. C., 721, or as a common-law action or one under the statute (Roberson v. Morgan, 118 N. C., 991), the Court will sustain the juris"diction.” Sams v. Price, 119 N. C., 573.
In Bowers v. R. R., 107 N. C., 727, these principles were applied and the jurisdiction of the Superior Court sustained to recover less than $200 upon a complaint which alleged a contract as the foundation of the action, and the negligent failure to perform the contract, and applying them to the allegations of the complaint in the present action it is clear that an action in tort,' which is within the jurisdiction of the Superior Court, is alleged, as the complaint alleges a tenancy, the nonpayment of rent, and a conversion of the crops raised on the lands rented. The judgment dismissing the action must be- set aside.
Reversed.