#### LeGRAND GUERRY, JR., Executor of LeGRAND GUERRY, Deceased, v. AMERICAN TRUST COMPANY, a Corporation, Executor of HERMAN A. MOORE, Deceased.

(Filed 12 December, 1951.)

1. Pleadings § 15—

The sufficiency of the answer to state a defense may be raised by demurrer.

*2.*Pleadings § 19c—

Upon demurrer to the answer, its allegations will be liberally construed, admitting for the purpose the truth of all allegations of fact as well as all relevant inferences of fact reasonably deducible therefrom, and the demurrer must be overruled if the answer is sufficient in any part or to any extent to state facts constituting one or more defenses. G.S. 1-151.

3. Money Received § 1—

The voluntary payment of money by a person who has full knowledge of all the facts cannot be recovered.

4. Waiver § 2—

Waiver is the voluntary relinquishment of a known right expressed or implied from acts and conduct naturally and justly leading the other party to believe that the right has been intentionally foregone.

*6455. Landlord and Tenant § 10 — Landlord voluntarily paying for repairs requested by sublessee without notice to lessee may not recover on covenant to repair.

This suit involved the right of lessor to recover under the terms of the lease requiring lessee to keep the property in repair, the cost of repairs made by lessor. Defendant’s answer alleged that lessee subleased by instrument requiring sublessee to repair, that lessor, with knowledge of all the facts, voluntarily paid for the repairs requested by sublessee without notice to lessee or demand that lessee perform the covenant to repair, and that the sublessee was in possession so that lessee had no knowledge of the necessity for repairs or opportunity to investigate. *Held:*The answer alleges the defense of a waiver in the nature of an estoppel, and demurrer thereto was improvidently sustained.

Appeal by defendant from *Bennett, Special Judge,*19 March, 1951 Extra Civil Term, MecicleNbueg.

Civil action to recover payments made by plaintiff and bis testator for repairs or replacements upon a building described in a lease. Both the lessor and the lessee are now dead and this suit is between the personal representatives of each.

The original lease, dated 11 October, 1940, contains an extension option which was exercised extending the lease to 31 October, 1952. Under the lease the tenant was obligated to do all repair work and maintain the building both inside and out, except for injuries resulting from natural decay and unavoidable accident. The lessee, Herman A. Moore, was granted the right to assign the lease and on 7 January, 1944, he assigned said lease to his wife, Emmie McConnell Moore. Under this assignment, Mrs. Moore subleased the property to Hood Motor Company, Inc., for the full extended term. The sublease contained substantially the same provisions with respect to repairs as the original lease.

Plaintiff alleges a violation by the tenant of the original lease in that he failed to make repairs as therein required, and alleges that repairs were made by plaintiff’s testator in the year 1946 and by plaintiff in the years 1948 and 1949 in the aggregate amount of $3,261.00. Plaintiff demands reimbursement from the tenant.

The defendant answering avers that the repairs referred to were made by plaintiff and his testator at the request of the subtenant, Hood Motor Company, Inc., without notice to the defendant and without giving him an opportunity to examine the premises or otherwise protect his rights under the original lease and under the sublease. The subtenant is in possession. Defendant further alleges that he had no notice that any repairs were necessary or that the plaintiff claimed any repairs were necessary until 1949, after the repairs had been made. He asserts that the plaintiff and his testator did not give the defendant any notice or opportunity to determine whether the repairs were necessary, or if neces*646sary, a ebance to call upon Hood Motor Company, Inc., to make tbe repairs under tbe terms of tbe sublease. He also contends that sucb actions and conduct of tbe plaintiff and bis testator amounted to abandonment and a waiver of tbeir rights witb respect to tbe repair and maintenance provisions of tbe original lease and further that the plaintiffs are estopped to make a claim against tbe defendant for tbe repairs so voluntarily made. Tbe defendant also contends that tbe payments made by tbe plaintiff and bis testator were voluntary payments made witb full knowledge of all tbe facts and in sucb a way as to make tbe plaintiff and bis testator volunteers and to preclude a recovery in this action.

Plaintiff filed a general demurrer to tbe defendant’s answer, further answer and defense, and second further answer and defense, on tbe ground that tbe defendant’s pleading did not state facts sufficient to constitute a defense to plaintiff’s cause of action. Tbe demurrer was sustained. Defendant excepted and appealed.

*Lassiter, Moore & Van Allen fo.r plaintiff, appellee.*

*B. Irvin Boyle for defendant, appellant.*

YaleNtiNb, J.

Was tbe court below correct in sustaining the plaintiff’s 'general demurrer to tbe defendant’s entire answer? This is tbe only question for decision upon this appeal.

It is settled that tbe sufficiency of an answer may be challenged and tested by a demurrer. McIntosh, page 507, sec. 475; *Williams v. Hospital Association, ante,*536. A demurrer admits tbe truth of all tbe allegations of fact contained in tbe pleading as well as all relevant inferences of fact reasonably deducible therefrom. *Insurance Co. v. McCraw,*215 N.C. 105, 1 S.E. 2d 369, and cases there cited. Both tbe statute, Gr.S. 1-151, and tbe decisions of this Court oía tbe subject are to tbe effect that a pleading as against a demurrer must be liberally construed in favor of tbe pleader. Facts alleged in an answer, although inartfully drawn, are sufficient to withstand a demurrer, if upon a liberal construction thereof tbe pleading is sufficient to present one or more defenses. *Pridgen v. Pridgen,*190 N.C. 102, 129 S.E. 419; *Dixon v. Green,*178 N.C. 205, 100 S.E. 262; *Farrell v. Thomas,*204 N.C. 631, 169 S.E. 224; *King v. Motley,*233 N.C. 42, 62 S.E. 2d 540.

' A pleading must be fatally and wholly defective before it will be rejected as insufficient. If tbe answer contains facts sufficient to constitute one or more defenses in any part or to any extent or if facts sufficient for that purpose can be fairly gathered from it, it is not demurrable, regardless of bow uncertain or inartfully drawn it appears, or bow defective or redundant its statements maybe. Every reasonable intendment and presumption must be made in favor of tbe pleader. *Fairbanks v.*
      *647
      *Murdock,*207 N.C. 348, 177 S.E. 122; *Vincent v. Powell,*215 N.C. 336, 1 S.E. 2d 826; *Insurance Co. v. McCraw, supra; Presnell v. Beshears,*227 N.C. 279, 41 S.E. 2d 835; *Dickensheets v. Taylor,*223 N.C. 570, 27 S.E. 2d 618; *S. v. McCanless,*193 N.C. 200, 136 S.E. 371; *Steele v. Cotton Mills,*231 N.C. 636, 58 S.E. 2d 620; *Bryant v. Ice Co.,*233 N.C. 266, 63 S.E. 2d 547.

Tbe defendant sets up as defenses tbat sometime during tbe year 1946 Hood Motor Company, Inc., tbe subtenant then in possession of tbe premises, notified and called upon Dr. LeGrand Guerry, tbe owner and lessor of tbe premises, to make certain repairs to tbe building, and pursuant thereto Dr. Guerry procured tbe repairs and paid for tbe same; tbat after tbe death of Dr. Guerry tbe said Motor Company in tbe years 1948 and 1949 notified and called upon tbe executor of tbe estate of Dr. Guerry for further repairs to tbe leased building and on both occasions tbe plaintiff caused tbe said repairs to be made and paid for tbe same; tbat tbe defendant was never notified either by Dr. Guerry or bis executor or anyone else tbat repairs were necessary to tbe said premises; tbat neither Dr. Guerry nor bis executor required tbe Motor Company to make tbe repairs although they knew at all times tbat tbe said Motor Company was in possession of tbe premises under a sublease of tbe defendant; tbat tbe failure of such notice to tbe defendant prevented him from ascertaining whether repairs were necessary, and, if so, whether such repairs were required of him under tbe terms of bis lease and further prevented him from requiring tbe Hood Motor Company to make said repairs as required of it under tbe sublease. Hpon these facts, tbe defendant contends tbat be bad no chance to ascertain whether tbe repairs to tbe building were necessary and whether they were included in or excluded from tbe covenant to repair contained in bis lease. He further contends tbat Dr. Guerry and bis executor had full knowledge of all tbe facts and circumstances surrounding tbe entire transaction and tbat tbe repairs were voluntarily made and paid for by Dr. Guerry and bis executor and tbat tbe defendant is therefore not liable for the costs of said repairs or any part thereof.

Defendant’s allegation tbat tbe plaintiff and bis testator were volunteers in making and paying for tbe repairs brings them within tbe well established rule of law tbat tbe voluntary payment of money by a person who has full knowledge of all tbe facts cannot be recovered. *Commissioners v. Commissioners,*75 N.C. 240; *Commissioners v. Setzer,*70 N.C. 426; *Brummitt v. McGuire,*107 N.C. 351, 12 S.E. 191. To tbe same effect is *Bank v. Taylor,*122 N.C. 569, 29 S.E. 831; *Bernhardt v. R. R.,*135 N.C. 258, 47 S.E. 427; *Williams v. McLean,*220 N.C. 504, 17 S.E. 2d 644.

*648A waiver is sometimes defined to be an intentional relinquishment of a known right. The act must be voluntary and must indicate an intention or election to dispense with something of value or to forego some advantage which the party waiving it might at his option have insisted upon. The waiver of an agreement or of a stipulation or condition in a contract may be expressed or may arise from the acts and conduct of the party which would naturally and properly give rise to an inference that the party intended to waive the agreement. Where a person with full knowledge of all the essential facts dispenses with the performance of something which he has the right to exact, he therefore waives his rights to later insist upon a performance. A person may expressly dispense with the right by a declaration to that effect, or he may do so with the same result by conduct which naturally and justly leads the other party to believe that he has so dispensed with the right. *Alexander v. Bank,*155 N.C. 124, 71 S.E. 69; *Furniture Co. v. Cole, 207*N.C. 840, 178 S.E. 579.

Neither the plaintiff nor his testator were under legal or contractual obligation to make the repairs. They had the right to demand that the tenant comply with his contract in this respect and make the necessary repairs. They knew that the original tenant was not in possession and that he, therefore, would have no knowledge of the necessity for repairs. There, was no demand upon or refusal by the defendant to perform the covenant to repair. Hence, the voluntary acts of plaintiff and his testator in making the repairs and paying for the same without notice to or demand upon the tenant constitute a waiver in the nature of an estoppel. *Clement v. Clement,*230 N.C. 636, 55 S.E. 2d 459.

Substantial justice between the parties is the point always in view in the construction of pleadings. *Kemp v. Funderburk,*224 N.C. 353, 30 S.E. 2d 155. Measuring the facts set up in defendant's answer by the applicable rules of law, it would appear that the defendant’s answer is sufficient to repel plaintiff’s demurrer. It follows, therefore, that his Honor was in error in sustaining plaintiff’s demurrer, and we so hold.

Reversed.