Ellen v. King

• Decision Date: 25 July 1955
• Docket Number: No. 17038,17038
• Citation: 88 S.E.2d 598,227 S.C. 481
• Parties: J. H. ELLEN, Jr., David M. Ellen, Jr., and William M. Ellen, Respondents, v. A. L. KING and St. Paul-Mercury Indemnity Company, Appellants.
• Court: South Carolina Supreme Court

Page 598

88 S.E.2d 598

227 S.C. 481

J. H. ELLEN, Jr., David M. Ellen, Jr., and William M. Ellen Respondents, v. A. L. KING and St. Paul-Mercury Indemnity Company, Appellants.

No. 17038.

Supreme Court of South Carolina.

July 25, 1955.

Willcox, Hardee, Houck & Palmer, Florence, J. B. Gibson and Hawkins & Bethea, Dillon, for appellants.

Herbert Britt, Dillon, Henry C. Jennings, Bishopville, James P. Mozingo, III, and John L. Nettles, Darlington, for respondents.

LEGGE, Justice.

This is an action against a building contractor and the surety on his payment and performance bond; and the appeal by the defendants is from an order of Judge Lewis dated September 19, 1953, refusing their motions to require the complaint to be made more definite and certain and to strike certain allegations thereof, and also from an order of Judge Brailsford dated February 10, 1954, refusing their motion to require the plaintiffs to appear for pre-trial examination by the defendants, and their motion to join an additional defendant.

Plaintiffs alleged in their complaint that on July 31, 1950, they entered into a contract with the defendant King whereby he agreed to construct a store building for them for the sum of $49,968.75 in accordance with plans and specifications signed by them and him; and that pursuant to his agreement to furnish a payment and performance bond in a sum equal to the contract price, the defendant St. Paul-Mercury Indemnity Company issued under even date with the contract its bond conditioned to indemnify plaintiffs against all loss that they might sustain should King fail to comply with all of the terms of his contract. The contract, plans and specifications, and contractor's bond are incorporated in the complaint by reference to copies attached thereto and served therewith. These exhibits are not reproduced in the transcript of record. As the motions to strike involved some, and the motion to make more definite and certain involved all, of the paragraphs of the complaint except the first four, it will be necessary to refer to them in some detail. In this connection we note that two of the paragraphs are numbered 5; and to avoid confusion we shall refer to the first as number 5 and to the second as number 5-a. Following are, in substance, the allegations of the paragraphs in question:

5. That King failed to perform his contract in accordance with the plans and specifications, in the following particulars:

(1) Did not finish the construction within 120 days from August 2, 1950, resulting in damage to the plaintiffs in the sum of $1,125.00;

(2) Failed to pay nine bills, which are separately stated, and which aggregated $2,095.71;

(3) Failed to properly install with the air conditioning system an automatic compensating starter in accordance with the contract 'and as recommended by Carolina Power & Light Company and the City Engineer of the City of Dillon'.

(4) Failed to properly install the heating and air conditioning system and equipment, in the following particulars:

(a) Failing to supply the unloader with compressors;

(b) Instead of the air handling unit called for in the specifications, installed a Worthington unit without by-pass section, without filter box and assembly, without spray type humidifier, and without face and by-pass dampers--the system so installed having required the expenditure of large sums for repairs, and being practically worthless;

(c) Failing to supply the boiler and hot water coil and circulator called for in the specifications;

(d) Failing to install the type of thermostats required by the specifications; and

(e) Failing to properly service the equipment as provided in the contract.

(5) Failed to install adequate drains, gutters and downspouts and connections to storm sewers, whereby plaintiffs had to install additional downspouts and sewer connections;

(6) Failed to properly cap the top of the front wall, which resulted in water seepage to the plaintiffs' damage $100.00;

(7) Improperly installed the roof by failing to place under it adequate supports and braces in accordance with the contract 'and as was reasonably necessary for the proper installation of said roof, resulting in damage to the plaintiffs in the sum of $4,000.00';

(8) Improperly installed the metal and glass structure, resulting in damage to the plaintiffs in the amount of $3,200.00;

(9) Failed to install cornices in accordance with the contract, resulting in a cost to the plaintiffs of $1,500.00;

(10) Failed to properly install panelling on the columns of the building;

(11) Failed to clean mortar from the face of the brickwork after completion; and

(12) In the erection of the walls, failed to use the type and quality of brick required by the contract.

5-a. That in addition to the foregoing, a crack approximately 90 feet long has developed in the front wall of the building, due to improper construction.

6. That in March, 1951, because of the failure to install proper gutters, drains, downspouts and connections, the store building was flooded with water to a depth of six inches or more, causing damage to the building and contents that plaintiffs had to bear, in the sum of $1,869.65.

7. That in addition, because of King's failure to perform his contract, plaintiffs have been put to considerable expense 'and inconvenience and have been forced to expend considerable time' and money in completing said building and trying to correct the errors made in the construction thereof.

8. That by reason of the facts before alleged, plaintiffs have been damaged in the sum of $40,000.

The defendants moved 'upon the complaint * * * and the exhibits thereto attached' to strike the following allegations from the complaint as irrelevant, immaterial and redundant:

1. Sub-sections (2), (5) and (10) of paragraph 5 and the above-quoted portions of sub-sections (3) and (7) of the same paragraph;

2. Paragraph 6; and

3. The above-quoted portion of paragraph 7.

Judge Lewis granted the motion to strike the above-quoted portion of sub-section (3) of paragraph 5, but refused it as to the other items, saying: 'This action is based upon a rather lengthy contract and specifications, and some of the matters sought to be stricken may not fall within the terms of the contract. However, the court at this time is not in position to determine with exactness whether the matters sought to be stricken are relevant or irrelevant. I feel that in the light of the testimony taken at the trial, these questions can be passed upon with a greater degree of accuracy. I am, therefore, refusing the motion to strike the other allegations without prejudice to the defendant to renew his position at the trial'.

The motion to strike was addressed to the discretion of the Circuit Judge. Mikell v. McCreery-Pressley Co., 105 S.C. 25, 89 S.E. 467; Staton v. Bell, 170 S.C. 395, 170 S.E. 666. No abuse of discretion has been shown here.

The defendants' motion to require the complaint to be made more definite and certain contained 28 specifications and attacked every paragraph of the complaint except the first four. The particulars in which it sought to have the complaint made more definite and certain were:

(1) As to paragraph 5(1):

(a) The number of days that the defendant King delayed completion of the building beyond the 120 day period;

(b) What loss of rent plaintiffs sustained;

(c) The items making up the damage of $1,125 claimed.

(2) As to paragraph 5(3):

In what manner King failed to properly install the automatic compensating starter.

(3) As to paragraph 5(4)(b):

(a) An itemized statement of the large sums expended by plaintiffs;

(b) Why the air conditioning system is practically worthless.

(4) As to paragraph 5(6):

(a) How, when, why and in what items plaintiffs were damaged by water seepage to the amount of $100;

(b) Whether plaintiffs have paid out said amount in whole or in part.

(5) As to paragraph 5(7):

(a) To what extent King failed to place adequate supports and braces under the roof, and to what extent and how the contract between the parties was not complied with in that regard;

(b) Itemization of the damages claimed in this sub-section.

(6) As to paragraph 5(8):

(a) In what manner the metal and glass structure was improperly installed;

(b) Itemization of the damages claimed in this sub-section;

(c) What amount plaintiffs have paid for proper installation of the metal and glass structure.

(7) As to paragraph 5(9):

(a) Itemization of the $1,500 damages alleged because of King's failure to install cornices;

(b) Whether plaintiffs have paid for proper installation of the cornices, and if so, who did the work;

(c) In what manner King failed to properly install the cornices.

(8) As to paragraph 5(10):

(a) In what manner the panelling on the columns was improperly installed;

(b) Itemization of the amount, if any, paid for proper installation of the panelling.

(9) As to paragraph 5(11):

(a) Whether plaintiffs have caused the mortar to be cleaned from the face of the brickwork;

(b) If so, how much they paid for that purpose;

(c) If not, what amount of damage is claimed in this regard.

(10) Also paragraph 5-a:

(a) What improper construction caused the crack in the front wall;

(b) The amount of damages claimed by reason of such crack.

(11) As to paragraph 6:

(a) Itemization of damage to building resulting from flooding;

(b) The amount paid, and to whom and when, because of flood damage to contents.

(12) As to paragraph 7:

(a) Itemization of the 'expense and inconvenience' claimed;

(b) Itemization of the work done and amounts expended in completing the building and in trying to correct construction errors.

(13) As to paragraph 8:

(a) Itemization of the amount of damages claimed, other than the amounts particularly enumerated in the complaint.

Section 10-606 of the 1952 Code of Laws provides that 'when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent the court may require the...