71 S.E. 1033 (S.C. 1911), Sprunt v. Gordon

Citation:71 S.E. 1033, 89 S.C. 426
Opinion Judge:HYDRICK, J.
Party Name:SPRUNT et al. v. GORDON.
Attorney:Kelley & Hinds, for appellant. Gilland & Gilland, for respondents.
Case Date:April 10, 1911
Court:Supreme Court of South Carolina

Page 1033

71 S.E. 1033 (S.C. 1911)

89 S.C. 426

SPRUNT et al.

v.

GORDON.

Supreme Court of South Carolina

April 10, 1911

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.

Page 1034

Kelley & Hinds, for appellant. Gilland & Gilland, 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. C., 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, [89 S.C. 428] 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 chose the demurrer, which was overruled, and plaintiffs had judgment on the pleadings. The court erred in requiring defendant to elect. At common law, it was not allowable to plead and demur to the same matter at the same time. Nor does the Code of Procedure of 1902 contemplate the filing of both an answer and a demurrer to the same matter at the same time, except as to two of the grounds of demurrer specified therein, to wit, that the pleading fails to state facts sufficient to constitute a cause of action or defense, and that the court is without jurisdiction. Section 164 says that the only pleading on the part of the defendant is either a demurrer or an answer, which clearly indicates that both were not intended to be allowed for the same matter at the same time. It then proceeds to specify the grounds for which a demurrer will lie, and provided, in section 168, that, if the matter enumerated as grounds of demurrer do not appear upon the face of the complaint, the objection may be taken by answer. But section 169 provides that all of the objections specified as grounds of demurrer shall be deemed waived, if not taken either by demurrer or answer, "excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action." There are sound reasons why a party should not be allowed to demur and answer at the same time. The office of a demurrer is to test the sufficiency of a pleading, and, until the pleadings are in proper form, the case is not ready for trial on the merits. To allow a party to answer and demur at the same [89 S.C. 429] time tends to confusion and unnecessary expense in the administration of the law; for neither party can tell whether the case will be disposed of on the issue of law, raised by the demurrer, or on the issues of fact raised by the answer. Therefore they are compelled to come to trial prepared to meet both issues; and they may be put to the unnecessary trouble and expense of having their witnesses at the trial when the case will be disposed of on the issue of law raised by the demurrer. It is therefore...

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