Ruberg v. Brown

• Decision Date: 24 September 1897
• Citation: 27 S.E. 873,50 S.C. 397
• Parties: RUBERG v. BROWN.
• Court: South Carolina Supreme Court

27 S.E. 873

50 S.C. 397

RUBERG v. BROWN.

Supreme Court of South Carolina

September 24, 1897

Appeal from common pleas circuit court of Barnwell county; Joseph H Earle, Judge.

Action by Theodore Ruberg against Simon Brown for damages for fraud. From a judgment for plaintiff, defendant appeals. Affirmed.

Robt. Aldrich and Bellinger, Townsend & O'Bannon, for appellant.

Jas. E Davis and Izlar Bros., for respondent.

JONES J.

A demurrer to the complaint in this case having been sustained on the ground that it did not state facts sufficient to constitute a cause of action, the circuit court granted leave to plaintiff to serve an amended complaint. This is an appeal by defendant from so much of the order as grants leave to amend. The Code does not authorize the substitution of a new cause of action by way of amendment. Lilly v. Railroad Co., 32 S.C. 142, 10 S.E. 932; Kennerty v. Phosphate Co., 21 S.C. 240. But, in its desire that causes shall be tried on their merits, it gives very large power of amendment; and the exercise of this power is discretionary and will not be interfered with by this court except for abuse of discretion. Heyward v. Williams, 48 S.C 564, 26 S.E. 797, and this is true even where amendments are permitted after sustaining a demurrer that the complaint states no cause of action. Trumbo v. Finley, 18 S.C 305. The case of Harvey v. Hackney, 35 S.C. 361, 14 S.E. 822, rules that a complaint that has been held not to state a cause of action may nevertheless be amended by leave of court, where the defect consists in a faulty statement, and not in an entire absence of any cause of action. This is manifest by the express language of section 194 of the Code, which gives the court power, before or after judgment, to amend any pleading, inter alia, "by inserting other allegations material to the case." It becomes necessary to determine in this case whether the complaint is beyond the court's power of amendment. The complaint is as follows: "(1) That at the times hereinafter mentioned the plaintiff was a citizen of the city of Chicago, in the state of Illinois, and was the owner of valuable property in the said city, of the value of ten thousand dollars, situate on a fashionable avenue in said city, and the rental value of said property was from one hundred and fifty to two hundred dollars per month. (2) That the defendant on or about the ___ day of January, 1895, procured the services of a real-estate agent in said city to trade with the plaintiff [for] the said property, and represented to said plaintiff that the defendant would exchange two valuable plantations, situate in the county and state above named, for said city property. (3) That said plaintiff is in bad health, and it was known to the defendant that he desired to move South, and would be willing to exchange said property as aforesaid for property of equal value in the county and state above named; and, believing in the sincerity and honesty of the defendant, he gave defendant a deed to said property, and the defendant gave plaintiff deeds to two tracts of land situated in said county, which he represented as being worth in value the same as plaintiff's property. (4) That said representation on the part of the defendant was absolutely false, the property being almost worthless, not exceeding in value more than one thousand dollars, and he knew this at the time said trade was made, and purposely combined with his said agent to swindle and defraud said plaintiff, to the damage of the plaintiff nine thousand dollars." Defendant demurred to this complaint on the ground that it does not state facts sufficient to constitute a cause of action, in that it does not allege any misrepresentation of any material fact, --a representation as to value being a mere expression of opinion,--nor that the false representation alleged in the complaint was made by defendant to plaintiff as an inducement for him to enter into the alleged contract of exchange, nor that the plaintiff relied upon said alleged false representation in entering into alleged contract, nor that the plaintiff believed said false representation to be true, nor that the alleged false representation was calculated to induce, and actually did induce, the plaintiff to make the alleged exchange of property. The demurrer was sustained, and leave to amend granted, without specifying in what particulars, except as might be inferred from the grounds of defects specified in the demurrer. One of appellant's grounds of appeal alleges error in granting leave to amend without qualification or limitation as to the character of the amendments. This objection if otherwise tenable, we think appellant has waived by...