Jumper v. Dorchester Lumber Co.

• Decision Date: 11 April 1922
• Docket Number: 10864.
• Parties: JUMPER v. DORCHESTER LUMBER CO. ET AL.
• Court: South Carolina Supreme Court

111 S.E. 881

119 S.C. 171

JUMPER v. DORCHESTER LUMBER CO. ET AL.

No. 10864.

Supreme Court of South Carolina

April 11, 1922

Appeal from Common Pleas Circuit Court of Hampton County; R. W Memminger, Judge.

Action by W. J. Jumper against the Dorchester Lumber Company and others. Defendants' motion to make petition more definite and certain was overruled, and it appeals. Affirmed, and appellee's motion to dismiss appeal denied.

Legoré Walker, of Summerville, for appellants.

Brown & Bush, of Barnwell, and George Warren, of Hampton, for respondent.

COTHRAN J.

Action for compensation as purchasing agent of the defendant company in the acquisition of certain real estate. The plaintiff alleges a contract, partly in writing and partly in parol, by which his compensation was to be measured either by a conveyance to him of the land with a reservation of the timber rights, or by payment to him of 50 cents per thousand feet of timber on the property purchased, estimated on a stumpage basis; that in compliance with said contract he negotiated for the company the purchase of certain lands for which the defendant paid $150,000; that there are 100,000,000 feet of timber thereon, estimated upon a stumpage basis; that the land, exclusive of the timber, is worth $60,000.

The defendants moved for an order requiring the plaintiff to make his complaint more definite and certain by specifying the oral and written parts, respectively, of the contract. The motion was refused, and the defendants appeal. The respondent moves to dismiss the appeal upon the ground that the order is not appealable until after final judgment.

The plaintiff has jumbled three separate and distinct causes of action in one complaint: (1) An action for specific performance of a contract by which he was entitled to a conveyance of the land, exclusive of the timber rights (2) an action to secure an interest in the land to the extent of $60,000 with a lien thereon therefor; (3) an action for 50 cents per 1,000 feet of timber on the land, estimated at 100,000,000 feet, $50,000.

It is impossible to tell from the complaint which of these causes of action the plaintiff intends to rely upon; he has the legal right to rely upon any one that he chooses. It is a proper case for a motion by the defendants to require the plaintiff to elect upon which cause of action he will proceed to trial.

Should he elect to proceed upon the equitable cause of action for specific performance of the alleged contract to convey to him the land exclusive of the timber, the following principles would be applicable: The plaintiff is under no obligation to describe the character of the evidence upon which he relies to establish the contract, and a...