Sprunt v. Gordon

• Citation: 71 S.E. 1033,89 S.C. 426
• Parties: SPRUNT et al. v. GORDON.
• Decision Date: 10 April 1911
• Court: United States State Supreme Court of South Carolina

89 S.C. 426
71 S.E. 1033

SPRUNT et al.
v.
GORDON.

Supreme Court of South Carolina.

April 10, 1911.

1. Pleading (§ 369^*)—Simultaneous Demurrer and Answer—Propriety.

Under Code Civ. Proc. 1902, § 164, authorizing defendant to "either" demur "or" answer, it is improper to do both at the same time, except to challenge the complaint for want of facts or the court's jurisdiction, and defendant may be required to elect upon which he will' stand.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. § 369.*]

2. Pleading (§ 222*)—Demurrer—Rights on Overruling.

When defendant's demurrer, filed in good faith, is overruled, ordinarily he should be allowed to answer.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 570-574; Dec. Dig. § 222.*]

3. Pleading (§ 369*)—Concurrent Answer and Demurrer—Election.

Under Code Civ. Proc. 1902, § 169, providing that grounds for demurrer to a complaint are waived by failing to take them by demurrer or answer, except objections for want of facts or to the court's jurisdiction, where defendant demurs and answers at the same time, both pleadings setting up want of facts, it is error to require him to elect on which he will stand.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dec. Dig. § 369.*]

4. Sales (§ 411*)—Action by Buyer—Pleading.

On suit for breach of contract to sell cotton the complaint was sufficient without alleging tender of the price, where it stated that plaintiffs were ready and willing to perform, and where defendant was entitled to deliver different grades at different prices.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1161-1164; Dec. Dig. § 411.*]

[71 S.E. 1034]

5. Sales (§ 185^2-*) —Tender by Buyer — Waiver.

By refusing to perform a contract to sell, the seller waives tender of the price by the buyer.

[Ed. Note.—For other cases, see Sales, Cent. Dig. § 498; Dec. Dig. § 185.*]

Appeal from Common Pleas Circuit Court of Williamsburg County; Geo. E. Prince, Judge.

Action by James Sprunt and another, partners as Alexander Sprunt & Son, against Alexander M. Gordon. Judgment for plaintiffs, and defendant appeals. Reversed.

Kelley & Hinds, for appellant.

Gilland & Gllland, for respondents.

HYDRICK, J. This is an action for damages for breach of contract. Plaintiffs allege that defendant made a written contract with them, whereby he sold and agreed to deliver to them, at Gourdins, S. G, between September 15 and October 31, 1909, 25 bales of cotton, to average 500 pounds per bale, 5 per cent, more or less, and. they agreed to pay him for it, on delivery, 10 cents a pound for middling cotton, and 10 1/8 for strict middling; that they were ready and willing to perform, and demanded performance of him, which he failed and refused to do, to their damage $500.

Defendant answered, and afterwards served notice of a demurrer to the complaint for insufficiency, because it is not alleged that plaintiffs tendered defendant the money for the cotton. On plaintiffs' motion, the court ordered defendant to elect whether he would stand on his answer or demurrer. He...