Cloniger v. Cloniger, 19569

• Decision Date: 14 February 1973
• Docket Number: No. 19569,19569
• Citation: 261 S.C. 603,193 S.E.2d 647
• Court: South Carolina Supreme Court
• Parties: James C. CLONIGER, Respondent, v. Lamar W. CLONIGER, Appellant.

Page 647

193 S.E.2d 647

261 S.C. 603

James C. CLONIGER, Respondent, v. Lamar W. CLONIGER, Appellant.

No. 19569.

Supreme Court of South Carolina.

Feb. 14, 1973.

Melvin L. Roberts, York, and Lourie & Draine, Columbia, for appellant.

Robinson, McFadden, Moore & Pope, Columbia, for respondent.

BRAILSFORD, Justice:

In this controversy between two brothers concerning an alleged oral contract to convey land, the circuit court overruled the defendant's exceptions to the report of the special referee and decreed specific performance. The defendant has appealed on a number of exceptions, which challenge concurrent findings of the referee and circuit judge as to the existence of the contract and the sufficiency of plaintiff's performance thereunder to remove the bar of the Statute of Frauds and assign other errors.

The defendant also appeals from an interlocutory order overruling his demurrer to the complaint for insufficiency of facts, in that, quoting from the demurrer, 'it does not properly allege facts to make out an enforceable contract to convey land.' Since the demurrer fails to distinctly specify the grounds of objection to the complaint, as is required by Section 10--643, Code of 1962, it was properly overruled. Pargas of Loris, Inc. v. Heniford, 254 S.C. 344, 175 S.E.2d 391 (1970).

In 1935, plaintiff, James C. Cloniger, moved from Gastonia, North Carolina, to York, South Carolina, where he purchased and took over the operation of a textile business. In 1944, the defendant, Lamar W. Cloniger, joined plaintiff and Flaye T. Cloniger, a third brother who had moved to York several years earlier, in this business. In 1957, plaintiff sold his interest in the textile business to his brothers and went into the construction business, in which he incurred heavy losses. In 1960, he borrowed $107,500.00 from Wachovia Bank and Trust Company of Charlotte, North Carolina, on an open note. When he sought to renew this note, it was discovered that the financial statement which he had furnished was materially erroneous or false. Wachovia refused to renew without security. Plaintiff gave a second mortgage on some 485 acres of land near York and a first mortgage on sixty-one acres. He also pledged one share of stock which he owned in Cloniger Real Estate Company, and his wife pledged ninety- eight shares as accommodation pledgor. ¹ Upon receiving this security, the bank renewed the note for two years from August 7, 1961, and waived and relinquished any claim against plaintiff on account of error or misrepresentation in the financial statement. It also agreed not to resort to Mrs. Cloniger's stock without first exhausting all other security.

Plaintiff's construction business continued on its disastrous course, and by January 24, 1963, he was unable to pay his debts or to complete work in progress. On that date he filed a petition in bankruptcy.

Wachovia sent representatives to York to investigate and appraise its collateral. These representatives concluded that the Cloniger Real Estate Stock had no value, and that the bank was going to take a big loss on the loan. Plaintiff and his attorney, John M. Spratt, had a more sanguine view of the value of the stock and land and conceived the idea of purchasing the note at a discount, with the ultimate aim of saving the collateral for plaintiff and his wife.

Extensive negotiations by plaintiff and Mr. Spratt with Wachovia on the one hand and with the defendant on the other culminated in the purchase by defendant for $40,000.00 of plaintiff's note to Wachovia, on which the balance due was $124,098.00, and the assignment to defendant of the stock and mortgage by which the note was secured. The defendant promptly turned the stock over to Mr. Spratt for delivery to plaintiff and his wife.

Looking toward the sale of the real estate by the trustee in bankruptcy, Mr. Spratt secured the agreement of the Federal Land Bank, the first mortgagee, that the land be sold subject to its lien, provided that the purchaser pay delinquent installments amounting to about $22,000.00.

At the well advertised and attended sale, held on January 22, 1965, at York County Courthouse, the defendant bid in the property for some $129,500.00, which represented the amount due on the Wachovia note, for which he received credit, and about $5,500.00 for delinquent taxes assessed against the land.

The foregoing facts are virtually undisputed. It is also undisputed that defendant's intervention was solicited by plaintiff and Mr. Spratt. The lamentable discord between the brothers is as to the terms upon which he intervened.

Plaintiff testified that when the opportunity to purchase the Wachovia note and mortgage for $40,000.00 arose, the defendant agreed to buy them as a means of helping plaintiff regain his land after its sale by the trustee in bankruptcy. According to plaintiff, the defendant agreed to bid for the land up to the full amount due on the note, and make other advances necessary to hold the land for plaintiff until such time as plaintiff could reimburse him in full for all costs incurred in acquiring and holding title to the land, with interest on such advances at the rate of six per cent. per annum, whereupon defendant would convey the land to plaintiff. Plaintiff's testimony is corroborated by that of Mr. Spratt and of his secretary. A statement of account and accompanying memorandum prepared by defendant and delivered to Mr. Spratt on November 15, 1968, also tend to corroborate it. The referee and circuit judge found further corroboration in other documentary evidence, and we agree.

The defendant denied having made any such agreement. While his testimony is corroborated to some extent by that of his brother, Flaye Cloniger, with whom he is associated in the textile business, the testimony of both is to some extent inconsistent with defendant's verified answer and counterclaim.

A more detailed review of the evidence on this point would serve no useful purpose. Suffice it to say that we agree with the concurrent findings below, quoting from the decree, 'that plaintiff has carried the burden of proving the parol contract by evidence which is clear, specific, definite, cogent and convincing,' as is required in such cases. Aust v. Beard, 230 S.C. 515, 96 S.E.2d 558 (1957).

The defendant argues that the agreement as testified to by plaintiff is too vague and indefinite as to time for performance and price to support specific performance. True, the agreement that plaintiff would repurchase the property when he became able failed to specify a time for performance. However, in such cases the law implies that it shall be done within a reasonable time, which is sufficient. McMillan v. McMillan, 77 S.C. 511, 58 S.E. 431 (1907); Martin v. La Boon, 116 S.C. 97, 107 S.E. 320 (1921).

As to price, under the well-settled rule the contract need only provide a means by which the consideration may be ascertained. Foard v. Snider, 205 Md. 435, 109 A.2d 101 (1954), is on all fours. There, a grantee agreed to reconvey to his grantor for a price equalling all expenditures with respect to the land made by the grantee. The court held that this price was not too indefinite, since it left nothing to the...