March 14, 1908. The opinion of the Court was delivered by This is an appeal from an order overruling a demurrer to the complaint, and refusing to strike out certain allegations thereof, to wit, those that are italicized in the following copy of the complaint:
I. "That the defendant is a corporation duly organized and chartered under the laws of one of the States of the United States, which State is unknown to plaintiff.
II. "That the defendant carries on a telegraph business in the States of South Carolina and North Carolina, transporting and transmitting messages from one place to another for hire.
III. "That on November 11, 1903, at Winston-Salem, N.C., a telegram of the following tenor and words was delivered to the defendant and charges prepaid thereon, for transmission and delivery to the plaintiff at Darlington, S.C.: *Page 312
"`Winston-Salem, N.C., Nov. 11th. H.S. Baird, Darlington, S.C. Draw on this bank with Coleman's check attached. People's National Bank.'
"But in utter disregard of plaintiff's rights the defendant carelessly, willfully, negligently and recklessly changed the said telegram as follows:
"`Winston-Salem, N.C., Nov. 11th. H.S. Baird, Darlington, S.C. Draw on this bank with Coleman's check attached. John Coleman.'
IV. "That the plaintiff was at the times herein mentioned,and is now, engaged in the insurance business as agent forseveral companies at Darlington, S.C. and acting in hiscapacity as such, he issued insurance to John Coleman inlarge amounts on tobacco, which the said Coleman had storedin Darlington. That at the time above-mentioned there wasdue as premiums on the said insurance from John Colemanto the plaintiff the sum of four hundred thirty-two and 5-100 dollars, and on October 28, 1903, the said John Coleman gave to the plaintiff a check on the Peoples National Bank, Winston, N.C., for the sum of four hundred thirty-two and 5-100 dollars, in settlement of the premiums thendue, which said check was duly deposited in the Peoples Bank at Darlington, S.C. for collection, and was presented to the Peoples National Bank of Winston-Salem for payment, but was returned to plaintiff unpaid.
V. "That thereupon on November 11, 1903, as above set forth, the Peoples National Bank of Winston-Salem, N.C., telegraphed the plaintiff as set forth above, which telegram,if it had been delivered in its proper form, would haveinstructed plaintiff what disposition to make of the returnedcheck, and plaintiff would thereby have collected the amountof said check, but the defendant having carelessly, wilfully, negligently and recklessly changed said telegram and delivered it in its changed condition, plaintiff was not instructed thereby, and could not pay proper attention to it, and the Peoples National Bank of Winston-Salem paid out the money then in its hands to pay this check, and when the *Page 313 plaintiff drew on said bank later, to wit, November 20, 1903, his draft was returned unpaid and this plaintiff thereby lost the sum of money aforesaid.
VI. "That on account of the carelessness, wilfulness,recklessness and negligence of the defendant above set forth,this plaintiff has been financially embarrassed, has had toallow matters to remain long overdue against him, and hasbeen injured in his credit and in his financial standing, andhumiliated, and has been damaged thereby in the sum ofnineteen hundred and fifty dollars."
We will first consider whether there was error in refusing to strike out said allegations on the ground that they were irrelevant and redundant.
In Pom. Code Rem., Section 517, it is said: "The fundamental and most important principle of the reformed pleading, the one from which all the others are deduced as necessary corollaries, is the following: The material facts which constitute the ground of relief should be averred as they actually existed or took place, andnot the legal effect or aspect of those facts, and not the mereevidence of probative matter by which their existence isestablished." (Italics ours.) Section 526 of the same work shows that "those important and substantial facts should be alleged which either immediately form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant, and not thedetails of the probative matter or particulars of evidence bywhich these material elements are to be established." (Italics ours.)
The italicized allegations of the complaint do not contain material facts constituting grounds of relief and should have been struck out.
The grounds of demurrer were as follows:
First. "In that it appears upon the face of the complaint that the plaintiff did not lose the money due him by John Coleman by reason of the failure to correctly deliver the *Page 314 telegram in question, but that he did fail to collect same by reason of the voluntary act of John Coleman in checking out the money in question from the bank where it was deposited, and by reason of the act of the Peoples National Bank of Winston-Salem in paying out said money regardless of the telegram, which it had delivered to the defendant company; and
Second. "Because it appears on the face of the complaint that the Peoples National Bank of Winston-Salem, by sending the telegram in question, assumed no obligation to pay plaintiff's draft when presented, and the telegram in its correct form did not give notice to the telegraph company that the said bank had assumed such obligations."
The plaintiff did not draw on the Peoples National Bank, for the reason that the telegram was not transmitted as presented, and the allegations show that the failure to transmit correctly caused him pecuniary loss to the amount of the check.
It is the judgment of this Court, that the order of the Circuit Court be modified in the particulars herein mentioned.