#### R. T. WILLIAMS v. D. U. BRUTON.

(Filed 13 December, 1939.)

1. Pleadings § 20—

A demurrer will not lie to a bill of particulars, tbe remedy, if tbe bill of particulars is insufficient, being an application to tbe judge to make it more definite.

2. Contracts § 21: Agriculture § 7e — Allegations held sufficient to state cause of action in favor of tenant for breach of contract to divide tobacco allotment.

Tbis action was instituted before a justice of tbe peace without written pleadings. Upon defendant’s motion made in the Superior Court on appeal, to limit plaintiff’s proof to bis allegations, plaintiff “alleged” that be was a tenant of defendant'under a contract providing that be was to have one-balf tbe tobacco poundage allotted to tbe acreage cultivated by him, that tbe tobacco raised thereon was less than tbe allotment, that be bad made demand on defendant for tbe value of one-balf of tbe unused allotment and that tbe demand bad been refused. *Helé:*If tbe “allega*583tions” be considered as a complaint, it avers tbe contract, its breach, and consequent damages, and defendant’s demurrer thereto should have been overruled.

3. Pleadings § 20—

Upon demurrer, the complaint will be liberally construed in favor of plaintiff.

Appeal by plaintiff from *Burney, J.,*at May Term, 1939, of BobesoN.

*McKinnon, Nance & Seawell for plaintiff, appellant.*

*F. D. Hacleett for defendant, appellee.*

Schenck, J.

This is an. action instituted before a justice of tbe peace and beard upon appeal by tbe defendant to tbe Superior Court. No pleadings other tban tbe summons was filed before tbe justice of tbe peace. Tbe summons designates tbis as “a civil action for tbe recovery of ninety-tbree dollars and ninety-five cents ($93.95) and interest . . . due by tbe defendant to tbe plaintiff under contract to perform farm labor . . .”

Tbe record in tbe Superior Court is as follows:

> “Defendant moves to require tbe defendant (plaintiff) to limit bis proof to bis allegations. Mr. K. T. Williams alleges that in 1938 be was tenant for Mr. D. TJ. Bruton; that be went upon Mr. Bruton’s farm as Mr. Bruton’s tenant, under a contract entered into between himself and Mr. D. U. Bruton. Plaintiff alleges further that tbe terms of tbe contract were that be was to have half of tbe acreage allotment in tobacco, which was allotted to Mr. D. U. Bruton on tbis farm, and that be was to have half of tbe poundage allotment allotted to Mr. .Bruton as landlord. That when tbe acreage allotment was given, Mr. D. TJ. Bruton was allotted 10% acres cf tobacco; that there were two tenants on Mr. Bruton’s farm, Mr. Williams and a tenant named Scott; that Mr. Bruton allotted one-balf of tbe tobacco acreage allotment to E. T. Williams and one-balf to Scott. That when tbe tobacco poundage allotment was given, Mr. D. U. Bruton was allotted 16,190 pounds on tbe basis of 10%-acre allotment. That Mr. E. T. Williams, on bis 5% acres of tobacco grew and sold 4,336 pounds. That bis half of tbe total poundage allotment for bis share was one-balf of tbe 16,190 pounds, or 8,095 pounds. That after having sold tbe 4,336 pounds of tobacco, there was left as bis and Mr. Bruton’s, bis landlord, part of tbe allotment 3,759 pounds; that of tbis 3,759 pounds, E. T. Williams’ half amounted to 1,879 pounds. That tbe market value of poundage card in 1938 was five cents a pound. That, therefore, tbe 1,879 pounds owing to plaintiff was worth $93.95. That tbis amount was owing under tbe *584terms of the contract between R. T. Williams and D. U. Bruton. That the amount has been requested and has never been paid.

> “By counsel for defendant: *‘I*desire to demur *ore tenus*for that it does not state a cause of action.’

> “By Court: Sustained.”

Whereupon judgment was entered wherein it is found that “this being in the nature of a bill of particulars,” it is adjudged that the demurrer thereto be sustained and the action dismissed at the cost of the plaintiff.

If the “allegations” filed by the plaintiff in response to the motion of the defendant be construed as a bill of particulars a demurrer thereto did not lie. If a bill of particulars is insufficient the remedy is an application to the judge to make it more definite, and not by demurrer. *Townsend v. Williams,*117 N. C., 330.

If the “allegations” be considered as a complaint, we are of the opinion that when construed liberally in favor of the plaintiff as a complaint must be on a demurrer, the demurrer *ore tenus*upon the ground that it does not state facts sufficient to state a cause of action cannot be sustained. The contract, its breach and consequent damage are alleged, whether such can be proved is for determination upon the evidence adduced.

The judgment of the Superior Court is

Reversed.