Burkhalter v. Townsend

• Decision Date: 05 May 1927
• Docket Number: 12202.
• Citation: 138 S.E. 34,139 S.C. 324
• Parties: BURKHALTER et al. v. TOWNSEND.
• Court: South Carolina Supreme Court

138 S.E. 34

139 S.C. 324

BURKHALTER et al. v. TOWNSEND.

No. 12202.

Supreme Court of South Carolina

May 5, 1927

Appeal from Common Pleas Circuit Court of Marlboro County; J. K Henry, Judge.

Action by Alma E. Burkhalter and others against Harris R. Townsend. From orders striking out defendant's answer as sham and irrelevant, and as not stating facts sufficient to constitute a defense and rendering judgment for plaintiffs, defendant appeals. Reversed and remanded, without prejudice to right of plaintiffs to move for order making the answer more definite and certain or to demur thereto.

The defendant's answer, directed to be reported, is as follows:

The defendant, Harris R. Townsend, answering the complaint herein, says:

For a first defense:

I. He denies each and every allegation of the complaint, except as hereinafter admitted or qualified or explained.

For a second defense:

I. The defendant admits so much of paragraph 2 as alleges that defendant and P. L. Breeden, deceased, entered into a lease contract, but denies that the terms are therein fully and correctly set forth.

II. The defendant has not accurate information about the allegations contained in paragraph 3, except as to the death of Capt. P L. Breeden.

III. The defendant has not sufficient information as to be able to form a belief as to the allegations of paragraph 4 of the complaint.

IV. The defendant denies all of paragraph 5, except as to the payment of rent by him during the years 1919, 1920, and 1921.

V. The defendant has not sufficient information to be able to form a belief as to the truth of paragraphs 6 and 7 of the complaint.

VI. The defendant denies paragraph 8 of the complaint.

For a third defense:

I. The defendant alleges that for 10 or 11 years prior to the death of Capt. P. L. Breeden, this defendant rented and leased from Capt. P. L. Breeden the lands referred to in the complaint and that during all of these years he faithfully carried out the terms of the contract between them; that the paper writing attached to the complaint does not fully set forth the terms of the rent trade between the plaintiff and Capt. P. L. Breeden; that, under the terms of the contract existing between this defendant and Capt. P. L. Breeden at the time of the death of the latter, this defendant was to be required to pay only such rent as represented a fair and reasonable rent, and it was agreed and understood between said Breeden and this defendant, as an essential part of said contract, that, in the event of any unusual occurrence affecting adversely the raising or marketing of cotton, an adjustment of the rent was to be made with this defendant. The defendant alleges that the unusual occurrence contemplated when the contract was made came into existence in Marlboro county in the year 1921; that this defendant sought earnestly to induce the plaintiffs herein to carry out the real contract entered into between him and the said Breeden, and it was only after the plaintiffs had refused to carry out said contract that this defendant was forced to the necessity of leaving the premises. Defendant alleges that he faithfully carried out the contract as long as the said Breeden lived, and that he sought in every way to perform the actual and real contract after the death of said Breeden, but was prevented from doing so by the conduct of the plaintiffs herein. Defendant therefore alleges that there has been no breach of the contract, as alleged in the complaint.

For a fourth defense:

I. The defendant alleges that the performance of the contract described and set up in the complaint, according to the terms therein set forth, was rendered utterly impossible by the irrepressible force of nature; that the only way for this defendant to perform said contract, as set up in the complaint, was to be able to make and gather cotton upon the same scale as was usual in the year 1918 and in previous years; that the boll weevil infestation made this utterly impossible and made it impossible for this defendant to perform said contract. Furthermore, the defendant alleges that the performance of the contract was rendered impossible by the destruction of the subject-matter of the contract.

McColl & Stevenson, of Bennettsville, for appellant.

J. K. Owens, of Bennettsville, and De Pass & De Pass, of Columbia, for respondents.

COTHRAN J.

This is an appeal from an order of his honor Judge Henry, striking out the defendant's answer as sham and irrelevant, and as not stating facts sufficient to constitute a defense.

The cause of action of the plaintiffs is based upon allegations of fact, which are substantially as follows:

One P. L. Breeden, of Marlboro county, owned a tract of land containing 400 acres, more or less, known as Breeden-Adamville plantation, in Adamville township, of said County; on December 30, 1918, he leased it to the defendant, Townsend, for a term of 5 years, beginning January 1, 1919, and ending December 31, 1923, at a yearly rental of $6,000, payable on or before October 1st of each year; the contract was in writing, and a copy of it said to be attached as an exhibit to the complaint, although it does not appear in the transcript; P. L. Breeden, the lessor, died about October 10, 1919, leaving a will which was admitted to probate in Marlboro county; by the will he devised the premises which had been leased, to the plaintiffs Alma E. Burkhalter and Margaret E. Holliday, for life, which entitled them to receive the rent as it fell due under the lease to the defendant; the defendant paid the stipulated rent for the years 1919, 1920, and 1921; in the fall of the year 1921 the defendant abandoned the leased premises and has refused to pay any rent at all for the years 1922 and 1923; the plaintiffs exercised due diligence in renting the land for the years 1922 and 1923, but $3,000 was as much as they could get; the plaintiffs give the defendant credit upon the rent due October 1, 1922, for the $3,000 collected from other tenants, and also the same upon the rent due October 1, 1923, and claim the unpaid balance of $3,000 on the rent of 1922, with interest from October 1, 1922, and the same for 1923, with interest from October 1, 1923. (This synopsis of the complaint, is, of course, intended only as such, and by no means as an adjudication of facts.)

The defendant's answer will be set out in full by the reporter in the report of the case.

After the answer had been served, the counsel for the plaintiffs served upon counsel for the defendant notice of a motion to dismiss "the alleged answer" on the ground:

"That the same is sham, irrelevant, and does not state facts sufficient to constitute a defense."

Upon hearing the motion, his honor Judge Henry signed an order...