#### T. L. STELLING v. WACHOVIA BANK AND TRUST COMPANY.

(Filed 9 October, 1935.)

1. Pleadings D e—

A demurrer challenges pleader’s right to maintain position in any view, admitting the allegations of the complaint as correct for the purposes of demurrer.

2. Fraud A to—

Complaint *held,*to allege misrepresentations amounting to fraud, and not mere promissory representations, and judgment sustaining demurrer of holder of notes with notice is reversed on authority of *Ciarle v. Lmrel Parle Estates,*196 N. C., 624.

Schenck, J., took no part in the consideration or decision of this case.

*839Appeal by plaintiff from *Warticle, J.,*at April Civil Term, 1935, of BuNCOjcbe.

Reversed.

This is an action brought by plaintiff against tbe defendant to recover a certain sum on account of tbe wrongful conduct of defendant. Tbe plaintiff alleges, in substance, that it was tbe policy of defendant by advertisement and otherwise to encourage saving by opening a saving department in its bank. That be was desirous of accumulating out of bis weekly salary for a particular use $250.00, and from 1/30/34 to 5/12/34 be deposited $250.00 in tbe saving department. That while be was doing this tbe defendant wrongfully and deceitfully gave him no notice that it bad any claim against him. When be went to draw tbe money out tbe defendant wrongfully and unlawfully refused to let him have tbe amount be bad deposited in tbe saving department, claiming that plaintiff owed defendant tbe sum of $450.00, and interest, on notes made by plaintiff that it bad purchased. That on 24 July, 1925, plaintiff entered into a contract with ¥m. I. Phillips Company, a corporation, to purchase Lot 16, in Block 13, subdivision of “Royal Pines,” at tbe price of $600.00, that be paid $150.00 cash and gave three notes for tbe balance — $150.00 each — payable 26 July, 1926, 192/, and 1928. A deed was made to him for tbe lot and a deed in trust back to secure tbe balance. That tbe notes came into tbe possession of tbe defendant with knowledge that tbe development known as “Royal Pines” was a fraudulent scheme. That defendant took tbe notes when past due and with notice that plaintiff denied liability on same on account of tbe fraud perpetrated on him by ¥m. I. Phillips Company, tbe owner of “Royal Pines.” That plaintiff was induced to give tbe notes upon tbe false and fraudulent representations of Wm. I. Phillips Company, and setting same forth in detail, and by a liberal construction of tbe complaint charging actionable fraud. That Wm. I. Phillips Company breached its contract with plaintiff. That plaintiff never- took possession of tbe lot, but same was kept by Wm. I. Phillips Company, or its assignees, and that tbe whole transaction, on account of the fraud of Wm. I. Phillips Company, was invalid. That defendant knew plaintiff’s contention that be owed nothing on said notes on account of tbe fraud. That defendant knew that tbe notes were claimed to be invalid by plaintiff when it acquired them, and is estopped to set up tbe notes against bis thrift deposit in defendant bank, and prays for damage against defendant for its wrongful and unlawful conduct.

Tbe defendant interposed tbe following demurrer: “That said complaint does not state facts sufficient to constitute a cause of action against this defendant: (a) For that it appears from said complaint that tbe defendant applied tbe plaintiff’s deposit mentioned and described in tbe complaint to an indebtedness which plaintiff owed to tbe defendant *840represented by certain promissory notes, and at tbe time said application was made and said credit given there was past due and unpaid on said notes a sum largely in excess of plaintiff’s deposit, and that defendant bad tbe legal right to so apply said deposit to tbe payment o’f said indebtedness, and plaintiff is not entitled to recover from defendant any part thereof, (b) For that it appears from said complaint that tbe plaintiff is estopped by bis conduct from now claiming that tbe notes mentioned and described in said complaint are not valid and binding obligations against him.”

Tbe court below sustained tbe demurrer, and plaintiff excepted, assigned error, and appealed to tbe Supreme Court.

*Frank Garter for plaintiff.*

*Alfred S. Barnard for defendant.*

Per OuriaM.

Tbe demurrer challenges pleader’s right to maintain position in any view, admitting tbe allegations of tbe complaint as correct for purpose of demurrer. Tbe complaint is sixteen pages. In tbe statement of facts we have digested tbe complaint in part, but, taking it as a whole, we think it sets forth a cause of action. "We think tbe representations of ¥m. I. Phillips Company, a corporation, more than promissory. Tbe “Royal Pines” type of real estate scheme, from tbe allegations of tbe complaint, seems to be similar to tbe Laurel Park Estates. Tbe fraud of such a scheme and tbe law on every aspect is fully set forth in *Clark v. Laurel Park Estates,*196 N. C., 624.

For tbe reasons given, tbe judgment below must be

Reversed.

ScheNcic, J., took no part in tbe consideration or decision of this case.