McEachern v. Wilson
| Decision Date | 22 January 1930 |
| Docket Number | 12815. |
| Citation | 151 S.E. 472,154 S.C. 201 |
| Parties | McEACHERN v. WILSON et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; C.J Ramage, Judge.
Action by J. R. McEachern against John Wilson and others, trustees of the estate of Elizabeth Wilson, deceased, and another. From an order denying motion to dismiss amended summons and complaint, defendants appeal. Reversed, and amended summons and complaint dismissed.
The original and amended complaints and the affidavit of L. D Jennings here follow:
Original Complaint.
The plaintiff above named, complaining of the defendants alleges:
1. That the defendants are the trustees of the estate of Elizabeth Wilson, deceased, and that they are all residents of the City and County of Sumter State of South Carolina.
2. That the plaintiff is a practicing physician, and has been such for many years. That on the 12th day of August, 1922, plaintiff closed said account with his promissory note in the sum of Two Thousand Three Hundred Thirty-eight and 35/100 ($2,338.35) Dollars for professional services rendered to W. B. Wilson by the plaintiff from time to time when he was sick, and in order to close said account the said W. B. Wilson did on the 12th day of August, 1922, close said account with his promissory note, bearing date August 12, 1922, for said sum payable on the 12th day of October, 1922, with interest from the 12th day of August, 1922, at the rate of eight per cent. per annum until paid.
3. The plaintiff is informed and believes, that prior to the 22d day of November, 1922, I. C. Strauss was the Agent and Attorney of Mrs. Elizabeth Wilson and attended to practically all of her business affairs, and was acting as such Agent and Attorney under the authority of Mrs. Elizabeth Wilson at the time hereinafter mentioned, and had full charge of representing her as Agent and Attorney in reference to the transaction herein referred to. That the said I. C. Strauss was at the same time, and had been for some time acting as Agent and Attorney for Thomas Wilson, and had also been acting as Agent and Attorney for the executors and trustees of the estate of Thomas Wilson and was perfectly familiar with the assets of the estate of Thomas Wilson; knew the value and the interest of the heirs of said estate, including that of W. B. Wilson in said estate.
4. That on or about the 22d day of November, 1922, the said I. C. Strauss acting as Attorney and Agent for Mrs. Elizabeth Wilson, as the plaintiff is informed and believes, came to the plaintiff in Tampa, Fla., and told him that there was absolutely no chance for him to collect said note of W. B. Wilson, as W. B. Wilson owed his father's estate more than he would ever have coming to him; but that his mother, Mrs. Elizabeth Wilson would be willing to give him One Thousand ($1,000.00) Dollars for said note. The plaintiff alleges that he had no other information as to what W. B. Wilson was worth, nor had he any other information as to what was the value of his interest in his father's estate, nor had he any other information as to W. B. Wilson's indebtedness to his father's estate, and at the time had no reason to doubt the representations made to him by the said I. C. Strauss; he believed them to be true, and relying absolutely upon the truthfulness of said representations made to him by said I. C. Strauss, the Attorney and Agent of Mrs. Elizabeth Wilson, he accepted said One Thousand ($1,000.00) Dollars from Mrs. Elizabeth Wilson for said note, and surrendered it to her.
5. The plaintiff alleges, upon information and belief, that at the time said I. C. Strauss represented to him that W. B. Wilson would have nothing coming to him out of his father's estate; he well knew that said representations were not true, but on the contrary he knew that W. B. Wilson would have around Two Hundred Thousand ($200,000.00) Dollars coming to him out of said estate, and would be amply able to pay said note in full; and he knew that the plaintiff did not know what would be coming to W. B. Wilson out of his father's estate, and he knew that the plaintiff did not know what was the indebtedness of W. B. Wilson to his father's estate; and he knew that the plaintiff in accepting said One Thousand ($1,000.00) Dollars for said note relied absolutely upon his representations as to the chances of collecting said note in full. The plaintiff alleges that said representations were willfully and wantonly made to him for the purpose of inducing him to accept One Thousand ($1,000.00) Dollars for said note, which he knew at the time was worth its face value.
6. The plaintiff further alleges, upon information and belief that the said I. C. Strauss, the Attorney and Agent of Mrs. Elizabeth Wilson knew at the time he made said representations that said note was worth its face value; he knew approximately what would be coming to W. B. Wilson out of his father's estate, and he knew that it would be approximately Two Hundred Thousand ($200,000.00) Dollars, and the plaintiff further alleges that Mrs. Elizabeth Wilson knew that there would be coming to W. B. Wilson out of said estate around Two Hundred Thousand ($200,000.00) Dollars, but notwithstanding this knowledge, the said I. C. Strauss, Attorney and Agent for Mrs. Elizabeth Wilson willfully, wantonly, and for the purpose, and with the intention of inducing the plaintiff to accept One Thousand ($1,000.00) Dollars for said note, represented to the plaintiff that W. B. Wilson owed his father's estate more than was coming to him, and that he would have absolutely nothing left.
7. The plaintiff now alleges, upon information and belief, that said representations were not true, but on the contrary W. B. Wilson had coming to him out of his father's estate over and above all of his indebtedness to said estate a sum in excess of Two Hundred Thousand ($200,000.00) Dollars, which fact the plaintiff alleges upon information and belief, was known to both I. C. Strauss and to Mrs. Elizabeth Wilson at the time said representations were made, and they knew that the same was unknown to the plaintiff.
9. That as a result of the plaintiff's accepting One Thousand ($1,000.00) Dollars for said note, he has sustained actual damages of Two Thousand Twenty-six and 57/100 ($2,026.57) Dollars, these actual damages being arrived at as follows: Interest on One Thousand ($1,000.00) Dollars from August 12, 1922, the date of said note to November 22, 1922, on said thousand dollars, amounting to Twenty-two and 22/100 ($22.22) Dollars, and interest on the balance of said note, to wit, One Thousand Three Hundred Thirty-eight and 35/100 ($1,338.35) Dollars from the date of said note August 12, 1922, to November 1, 1928 amounting to Six Hundred Sixty-two and 2/100 ($662.02) Dollars added to the Twenty-two and 22/100 ($22.22) Dollars makes a total of Six Hundred Eighty-eight and 32/100 ($688.32) Dollars added to One Thousand Three Hundred Thirty-eight and 35/100 ($1,338.35) Dollars makes Two Thousand Twenty-six and 57/100 ($2,026.57) Dollars. He has been without the use of this money all of this time, he has been put to the expense of having to employ counsel to bring this action; will be forced to the necessity and expense of being absent from his business for the purpose of attending Court at the trial of this cause, all of which was caused by reason of the wilful misrepresentations made to the plaintiff by the Agent and Attorney of Mrs. Elizabeth Wilson which resulted in the plaintiff being defrauded out of the sum herein alleged that was due him by W. B. Wilson. The plaintiff further alleges, upon information and belief, that after receiving said note, that Mrs. Elizabeth Wilson by and through her said Agent and Attorney collected said note in full from W. B. Wilson, and the plaintiff further alleges that said representations were made for the purpose of obtaining said note for less than its true value, which value was known to the defendants' intestate with the intention of realizing its full value from W. B. Wilson and thereby defrauding the plaintiff out of the difference between the thousand dollars paid the plaintiff and the actual worth of said note, and as result of the facts herein alleged, the plaintiff alleges that he has been injured and damaged, including actual and punitive damages in the sum of Ten Thousand ($10,000.00) Dollars and the defendants as the trustees of the estate of Mrs. Elizabeth Wilson are liable to him for said damages.
Wherefore, the plaintiff demands judgment against the defendants for the sum of Ten Thousand ($10,000.00) Dollars and for the cost of this action. L. D. Jennings, Plaintiff's Attorney. (Duly verified.)
Amended Complaint.
The plaintiff above named, complaining of the defendants, alleges:
1. That he is informed and believes that Elizabeth Wilson departed this life testate, prior to the year 1927, leaving of force her last will and testament; that in and by the terms of said last will and testament, she appointed the defendants John Wilson, G. A. Lemmon and Mary Wilson, executors of her said last will and testament, and authorized them, or the survivors of them, from time to time and at such times as they deem proper, to sell and dispose of any property of hers at such price or prices, and on such terms as they may deem for the best interest of her estate; that under the terms of said will the said Elizabeth Wilson gave and bequeathed unto John Wilson, G. A. Lemmon and Mary Wilson, as a Board of Trustees certain funds to be held in trust and paid over at certain times to the respective parties named in the said last will and testament; that in paragraph 2 of said will of Elizabeth Wilson it is provided:
"I give, devise and bequeath all the rest and residue...
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