Porter v. Mullins

• Decision Date: 21 November 1941
• Docket Number: 15331.
• Parties: PORTER v. MULLINS.
• Court: South Carolina Supreme Court

17 S.E.2d 684

198 S.C. 325

PORTER v. MULLINS.

No. 15331.

Supreme Court of South Carolina

November 21, 1941

Appeal from Spartanburg County Court; Arnold R. Merchant Judge.

Action by Odette Porter against R. A. Finley for breach of contract accompanied by a fraudulent act, wherein defendant filed a demurrer. From a judgment for plaintiff, Ruth Finley Mullins as executrix of the will of R. A. Finley, deceased appeals.

Jesse W. Boyd, of Spartanburg, for appellant.

S. T. Lanham, of Spartanburg, for respondent.

A. L. GASTON, Acting Associate Justice.

The plaintiff recovered a verdict herein for $136.85 actual damages, and for $300 punitive damages, before Judge Merchant and a jury on May 8, 1940. The County Court overruled defendant's demurrer to the complaint and motion to require the complaint to be made more definite and certain; also the motion for a directed verdict, and for a new trial. Judgment was duly entered accordingly. The appellant served sixteen exceptions, which are argued under seven propositions.

The pleadings and the testimony establish as facts that the plaintiff bid in at auction sale a certain unimproved lot of land, owned by R. A. Finley, who died after the trial of the case. A deed to the premises was executed and delivered pursuant to the auction sale. The auction sale was not entirely successful and was terminated before many lots were sold. R. A. Finley testified that he first acquired the property about 1918, upon which his residence is situated, facing Roebuck road, outside the city limits of Spartanburg, containing thirteen acres. He testified in regard to the venture, that he has owned it ever since, except for a lot or two on the Roebuck road and the one sold to Mr. Porter; that he sold one lot to Jones; that Porter bought his at auction sale, and Finch bought his after the sale.

At the auction sale a plat or blue print was exhibited showing Woodlawn Avenue on the plat. This proposed street was also staked off for the sale on the ground. A plat made in 1914, before Mr. Finley owned the property, duly recorded, of the property, then known as the Bomar property, shows a strip of fifty feet between two blocks, marked Woodlawn Avenue. The auctioneer, Mr. Dudley Gaffney, publicly referred to lot No. 1 as a corner lot, being located on the corner of South Avenue and Woodlawn Avenue, but failed to get a buyer for this desirably located corner lot. The deed to the lot conveyed to the plaintiff describes the bounds of the lot as "beginning at an iron pin on the edge of South Avenue, 250 feet southeast from the corner of Woodlawn Avenue," etc.

There is considerable testimony and some controversy in regard to the next step in the chain of events which finally culminated in this lawsuit.

The plaintiff's explanation is that after he obtained his deed he "started making arrangements to get the water run so I could start work on the house," to connect with the city line in order to supply water for houses of Finch and the plaintiff, located upon lots sold by the defendant. After consultation the defendant was not unwilling to take a third interest in the proposed water line, to be run through his field. In fact a written agreement was signed between the defendant and the three men who owned the lots to the effect that the defendant could tap the line. This trade fell through because Jones did not have the right-of-way to sell, but it belonged to Mr. Black.

The plaintiff testified as to the next step as follows:

"Q. When did the question of Woodlawn Avenue come up with Mr. Finley? A. I was measuring to see where I would have to run, and Mr. Finley came out and said, 'What are you doing?' and I said, 'If I can't tap on at the road we will come through in here,' and he said, 'I don't blame you, if you can get it cheaper.' Mr. Godfrey and Mr. Finch and Mr. Finley and his son was all there.

"Q. When was that? A. I couldn't say the day, but it was after we had seen about tapping on at Mr. Jones'.

"Q. How soon after that did you consider laying it along on Woodlawn Avenue? A. Three or four days.

"Q. What did you do? A. I made arrangements for the pipe to be brought out.

"Q. Did you buy the pipe? A. Yes, sir, and the city water works was digging the ditch and laying the pipe for me, and they dug and got 200 feet in the ground and was going to come out Woodlawn Avenue, and they notified me that Mr. Finley had served notice on them."

Matters were abruptly halted here. At this point in the failure of negotiations a letter was received by the City Water Works Superintendent from the defendant's attorney.

It will be seen that the complaint is for damages incident to the laying of this private pipe line for city water to the lot sold to plaintiff by defendant, and that the defendant in violation of his promise stopped the plaintiff, in a wilful and malicious breach of defendant's said promise and also his representations as to Woodlawn Avenue, while the plaintiff was in process of laying his pipe line, pursuant to defendant's statement to plaintiff that he could lay for himself a water pipe line up Woodlawn Avenue to South Street and up South Street to his lot. The plaintiff claims that his rights were violated and he was compelled to put his pipe line at a more expensive route following the highway, to his injury and damage.

The answer admitted that the plaintiff had purchased a lot from the defendant, set up a general denial as to the other material allegations, contained explanatory allegations, and reserved the right to insist upon the demurrer and motion to strike.

The defendant's demurrer and motion to amend were heard by the county judge during the term of court in which the case was tried, and both were overruled by a minute order. However, in overruling the motion to amend the trial judge held that as it stood the complaint contained appropriate allegations to an action in tort for damages for violation of a known right, and also appropriate allegations for damages for wilful breach of contract, and that the plaintiff would be required to elect on which cause of action he would go to trial. Plaintiff under this ruling elected to go to trial on a cause of action for breach of contract accompanied by fraudulent act, and the court ordered the case to trial.

The first question presented by the appeal is that the defendant was prejudiced by the refusal to sustain the demurrer and to require the complaint to be made more definite and certain. The grounds of the demurrer are that three causes of action are improperly united in the complaint, to wit: (1) An action on covenant, (2) an action on oral promise relating to interest in real estate, and (3) an action for violation of dedication of Woodlawn Avenue to the public. The motion to strike relates to defendant's effort to segregate plaintiff's supposed causes of action on covenant, on promise, and for violation of dedication.

Appellant's contention in the argument is the refusal of the trial court to sustain the demurrer, and to require the complaint to be amended, carried into the trial of the case to the defendant's disadvantage matters relating to the defendant's deed to the plaintiff, and matters relating to a street dedication.

While the courty court judge held in overruling the demurrer and motion that the plaintiff should elect on which cause of action he would go to trial, it clearly appears that the case was tried on only one cause of action, viz., for breach of contract accompanied by fraudulent act.

The county court judge also instructed the jury as follows: "This action is for a breach of contract subsequent to the making of the deed. All that evidence is for you to consider. It is for the contract to furnish a place for the water line. The Foreman of the Jury: 'Your Honor, I would like to be instructed as to whether or not Mr. Porter had any legal rights in Woodlawn Avenue.' The Court: 'I think I would be wading a little bit far afield if I attempted to go into that, because you gentlemen are concerned with the contract between the parties and the violation of the contract. The action is based upon the contract, and not upon the violations of known right, which would be an action in tort."'

The case was tried in a very narrow compass. The only actual damages testified to were in regard to the water pipe line. As construed by the county court Judge and under plaintiff's election, it appears that the demurrer was properly overruled. Only one cause of action is stated in the complaint and it alone was submitted to the jury. The suit is based on a claim for damages for the alleged breach of a contract to allow the plaintiff to lay his pipe line to his lot and for damages. The allegations of the complaint relate to evidentiary matters, which necessarily are pertinent to show the aggravation of the alleged breach, and the consequent damages, and also the evil intent accompanied by fraudulent acts in the breach. The plaintiff relied upon the defendant's inducements, representations and promises, to use the short line along the route of Woodlawn Avenue to lay the water pipe line. After the city had dug 200 feet the work was stopped. The plaintiff was compelled to buy pipe for a longer route around the road, about 500 feet more, at the rate of $15.74 per 100 feet; he also lost a week's time in the futile effort to comply with defendant's terms and agreement. It would seem that the plaintiff has suffered a wrong and is entitled to his remedy in court. As this court has expressed it, "the 'subject of the action' is the plaintiff's main primary right which has been broken, and by means of whose breach a remedial right arises." The cause of action is the legal wrong committed against the plaintiff by the defendant. Knight v....