Kennerty v. Etiwan Phosphate Co.
| Decision Date | 26 April 1884 |
| Citation | 21 S.C. 226 |
| Parties | KENNERTY v. ETIWAN PHOSPHATE COMPANY. |
| Court | South Carolina Supreme Court |
1. A complaint alleged that plaintiff had executed to defendant a paper under seal containing a release and covenant not to sue for future damages, without reading the paper so executed and not knowing at the time that such release and covenant were therein inserted, but supposing that this paper, which was sent to him by his attorney, was a copy of another paper previously executed by plaintiff, in which there was no such release or covenant. The complaint contained no allegations of mutual error, nor of fraud, concealment, or imposition by defendant, but only showed a mistake by plaintiff, occurring through no fault of defendant; and judgment was prayed for a reformation of the instrument, and an injunction to restrain defendant from using it in bar of an action by plaintiff for damages. Held , on demurrer, that the complaint did not state facts sufficient to constitute a cause of action.
2. If under the prayer for general relief, a cancellation could be decreed, still the facts stated made no cause of action especially as no offer was made to repay the money received by plaintiff from defendant under the terms of the said instrument.
3. The complaint should have been dismissed, and the Circuit judge erred in granting leave to plaintiff to amend, as no ground appeared for any of the amendments authorized by section 194 of the code of procedure; and the plaintiff cannot, by way of amendment, make a new cause of action, e. g. cancellation of instrument, instead of reformation.
4. This case distinguished from Bischoff & Co. v Blease , 20 S.C. 460.
5. An allegation that defendant had violated the agreement furnishes no ground for a reformation of the agreement.
Before COTHRAN, J., Charleston, April, 1883.
The order of the Circuit judge in this case was as follows:
This matter came on to be heard by the court on a motion to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The question presented is purely one of pleading, in the consideration of which it must be borne in mind that the code of procedure has completely reversed the ancient rule of the common law, which allowed nothing by way of intendment, and required all construction to be made most strongly against the pleadings. In this matter the rule has been substituted in most, if not in all, of the cases, and certainly in ours that " in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." See Code , § 180. " When the allegations of a pleading are indefinite and uncertain, so that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain by amendment." This ought not to be, as it is too often, confounded with the remedy by oral demurrer, such as has been interposed here; the provision for amendments is very ample. See chap. VI., title VI., passim .
The complaint should contain a plain, concise, and intelligible statement of the material facts which constitute the ground of relief as they actually exist, and not the legal effect, or as part of those facts, and nothing of the mere evidence or probative matter by which their existence is established. It may as well be conceded, once for all, that the code of procedure is now the only source of authority from which the rules of pleading may be drawn; that its methods have completely supplanted those which preceded it, and that the latter (which we have abandoned with such evident reluctance) can no longer be appealed to as possessing of themselves any force and authority. Pom. Rem. , § 515. The object of the pleading is still, as it has always been, to arrive at a special issue upon a given and material fact; the primary requirement is, that the complaint shall contain a statement of the facts constituting the plaintiff's cause of action, not according to their legal effect, as such may appear to the mind of the pleader, but as they actually existed, and must be set forth in ordinary language. Presumptions of law must not be stated.
A demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action, does not necessarily deny the existence of the right or cause of action, but its effect is to raise the issue whether or not the complaint has alleged facts sufficient to put the defendant to his answer. Mr. Pomeroy (§ 519) has ventured to define the term, " cause of action," as follows: " (1) The plaintiff's primary right, and the defendant's corresponding primary duty, whatever be the subject to which these relate, whether of person, character, property, or contract; and (2) The delict or wrongful act or omission of the defendant, by which the primary right or duty have been violated." This seems to be philosophical and sound. The first inquiry then is, obviously, does a cause of action exist here? and, secondly, does the plaintiff's complaint state facts sufficient to put the defendants to their defence by way of answer?
It may be observed that the defendants have not thought it proper or necessary, up to this time, to answer the complaint. Had they done so, it would in no wise have affected the result of this motion. The complaint only is before me, and for the purpose of this motion, every allegation contained in it, which has been properly averred, must be taken to be true. Whether the defendants have the right thus to attack the complaint before an issue is made up by answer, demurrer, or notice of appearance (which would have taken the case to a docket), for other reason than to require the plaintiff to make the allegations thereof " more definite and certain," has not been questioned by him, and may therefore be considered as having been waived.
The plaintiff and defendant are contiguous land owners on Charleston Neck, the one a truck farmer, the other engaged in the manufacture of commercial fertilizers. The occupation of his premises by the former is prior, in point of time, to the possession of theirs by the latter. Several years ago, the plaintiff, being aggrieved and injured in his property by the action of the defendants in the legitimate business in which they were engaged, brought suit in this court and recovered a verdict for $2,000 damages against the defendants. That proceeding not being for a public nuisance, but for injuries sustained by the plaintiff, the damages given by the jury could in no event be estimated beyond the period at which the verdict was rendered.
It would seem that, as a right of action existed in favor of the plaintiff then, as was shown by the result of the suit, the same cause, if continued, would produce like results, with like remedy to the plaintiff for future damages; and suits toties quoties might have been instituted by the plaintiff against the defendants; and thus an abatement of the nuisance would have been accomplished by means of the increased severity of the verdicts of successive juries in punishment of the contumacy or obstinacy of the defendants. If, therefore, the plaintiff has not deprived himself of this continuing right by the terms of the so-called agreement (a fact to be determined, according to my view of the matter, at a future stage of this suit, and upon an issue differently made up to this), and if he has sustained damages at the hands of the defendants, as he alleges in his complaint, and as must be conceded under the rule of law applicable to the defence by way of demurrer, then is the conclusion irresistible that a cause of action exists against the defendants in this behalf.
Secondly. Does the complaint state facts sufficient to constitute a cause of action? The principle of law under which this proposition will be considered, and which commands the support of an array of authorities almost interminable, is well stated in the case of Morse v. Gilman , 16 Iowa 504, citing a line of New York cases to be found in 4 Duer , 610, 5 Id. , 697, and E. D. Smith , 554. It is as follows:
The plaintiff alleges in his complaint that he signed a certain paper which contains a stipulation on his part not to claim future damages from the defendants, and a covenant not to sue therefor; but he most positively denies that he was advised of, or in any way had knowledge of, such stipulation and covenant. That the said paper was procured from his attorney at law, the late M. P. O'Connor, Esq., " by overtures made by, or in behalf of, the said defendant corporation." That, admitting the efficacy and binding effect otherwise of such stipulation and covenant, the defendants themselves have violated the terms of said agreement by enlarging the capacity of their works, by reason whereof he claims to have been released from the terms of the said agreement. In paragraph 1 he alleges that " irreparable damage" will be done to him by the operation of the defendants' works. The effect of the demurrer is to admit the truth of these allegations.
Mistake overreaching, breach of agreement, are all grounds of equitable...
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