Flowers v. Price

• Decision Date: 25 May 1939
• Docket Number: 14883.
• Citation: 3 S.E.2d 38,190 S.C. 392
• Parties: FLOWERS v. PRICE.
• Court: South Carolina Supreme Court

3 S.E.2d 38

190 S.C. 392

FLOWERS v. PRICE.

No. 14883.

Supreme Court of South Carolina

May 25, 1939

C E. Gardner, of Darlington, for appellant.

Samuel Want, of Darlington, for respondent.

PHILIP H. STOLL, Acting Associate Justice.

The primary question raised by this appeal is whether or not the complaint states a cause of action.

The plaintiff-appellant contends that the complaint is appropriate to three grounds of recovery or causes of action viz.: (1) Fraud and deceit; (2) fraudulent breach of a contract accompanied by a fraudulent act; (3) cursing and abusive language, upon the ground that plaintiff was where he had a right to be and on business which was solicited and invited by defendant.

When the demurrer to the complaint was heard by his Honor, Judge Dennis, he held the complaint to be an action for fraud and deceit and sustained defendant's demurrer thereto. From this order plaintiff appealed.

The material allegations of the complaint are as follows:

That the defendant operates a tobacco warehouse in the Town of Darlington and that on a stated date in August, 1938, the plaintiff carried a part of his tobacco to the defendant's warehouse to be sold and weighed; that the plaintiff discovered that the tobacco of other farmers on the same occasion was being weighed short; that he thereupon asked that his tobacco be reweighed; that this was done as to a part of the plaintiff's tobacco and that a shortage in the weighing was thus discovered; that the defendant's agent thereupon abused and cursed the plaintiff and told him that if he was not satisfied with the weights to take his damn tobacco out of defendant's warehouse; that the plaintiff then carried his tobacco to another warehouse for sale and at such warehouse it weighed more than ten per cent more than the defendant had weighed it.

The complaint then alleges certain implied representations that led him to deposit his tobacco in the warehouse of the defendant for sale, and the fraudulency of the same and the consequences to the plaintiff of the alleged false weighing of his tobacco and of the treatment he alleges he received from the defendant's agent.

The conclusion of the complaint is "that by reason of the premises and of the facts herein alleged, and as the direct natural and proximate result of the fraud and false and fraudulent representations and intent as herein alleged plaintiff was deceived as alleged and has suffered injury and has been damaged in the sum of Three Thousand ($3,000.00) Dollars both actual and punitive damages."

Judge Dennis construed the complaint to be an action for fraud and deceit and it does not appear that it was contended before him that the complaint could be construed as stating any other cause of action.

There are three cardinal principles applicable to all demurrers: (1) For the purposes of demurrer, all the allegations of the complaint are admitted; (2) when a complaint is attacked by demurrer, it must always be liberally construed in favor of the plaintiff; (3) if the complaint contains any allegations, which entitle the plaintiff to relief either on the law or the equity side of the Court, then it is not subject to demurrer. Blassingame v. Greenville County, 134 S.C. 324, 132 S.E. 616.

When the complaint is considered in its entirety and without the many words and phrases used in a descriptive way, it charges the defendant with short-weighing plaintiff's tobacco. Under paragraph two of the complaint it is alleged that the defendant was engaged in the business of operating a tobacco warehouse for the sale of leaf tobacco and that defendant solicited the farmers to sell their tobacco with him as is usual with tobacco warehouses. Nowhere in the complaint is it alleged that the defendant was buying plainti...