Smith v. Traxler, 16798
| Citation | 224 S.C. 290,78 S.E.2d 630 |
| Decision Date | 11 November 1953 |
| Docket Number | No. 16798,16798 |
| Court | United States State Supreme Court of South Carolina |
| Parties | SMITH v. TRAXLER. |
Thomas B. Butler, Leon Moore, Spartanburg, for appellant.
Claude R. Dunbar, Spartanburg, for respondent.
This is an appeal from an order refusing to permit appellant to amend his answer by adding the defense of the Statute of Frauds.
The action, which is for the recovery of actual and punitive damages and grows out of a provision in a lease conferring upon respondent the option to purchase the demised premises in the event that appellant should desire to sell, was commenced on December 24, 1951. On January 12, 1952, appellant filed a demurrer to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. One of the specifications in the demurrer was that the alleged cause of action was barred by the Statute of Frauds. On April 22, 1952, appellant, reserving his rights under the demurrer, also filed an answer. The demurrer was heard by Judge Griffith on March 24, 1952, and overruled in an order filed on May 31, 1952. After referring to the well-recognized rule that a demurrer should be overruled if the complaint states any cause of action, Judge Griffith said he was 'satisfied that the allegations of the complaint are ample to permit proof of fraud.' There was no appeal from his order.
The cause was thereafter considerably delayed on account of the protracted illness of appellant's counsel. Finally, additional counsel was employed in January, 1953, at which time a motion, supported by an appropriate affidavit, was made for permission to amend the answer by setting up as a second defense a plea of the Statute of Frauds. This motion was heard by Judge Bellinger and refused in an order filed March 16, 1953. He construed Judge Griffith's order as holding that the complaint stated 'a cause of action in tort, i. e., for fraud,' which, until reversed, was the law of the case. Judge Bellinger then concluded: 'Since the Statute of Frauds may not be set up to shield a fraud, and this being an action for fraud, the proposed amendment would not be a proper defense and therefore the motion of the defendant to amend his answer by setting up the Statute of Frauds as a defense must be overruled.'
It will be noted that the order of Judge Bellinger is based solely on the theory that Judge Griffith held that the complaint states only a cause of action for fraud and deceit. This assumption is erroneous. While Judge Griffith did construe the complaint as stating a cause of action for fraud and deceit, it was not necessary for him to decide whether the complaint stated any other cause of action and we don't think he undertook to do so. Evidently this, as well as the fact that the complaint contains other causes of action besides fraud and deceit, is conceded by respondent's counsel, for he states in his brief:
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...to require pretrial amendments to pleadings to be freely granted unless a circumstance exists to justify refusal. Smith v. Traxler, 224 S.C. 290, 78 S.E.2d 630 (1953); Braudie v. Richland County, 217 S.C. 57, 59 S.E.2d 548 (1950). Although the drafters of our current rules of civil procedur......
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...is tantamount, in contemplation of law, to making it with knowledge of its falsity. Of course fraud is never presumed, Smith v. Traxler, 224 S.C. 290, 78 S.E.2d 630, and its proof requires evidence that is clear, cogent and convincing, Singleton v. Mullins Lumber Co., 234 S.C. 330, 108 S.E.......
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Bank for Sav. and Trusts v. Towe, 17296
...v. Fant, 174 S.C. 49, 176 S.E. 866; Parker v. Mayes, 85 S.C. 419, 67 S.E. 559, 137 Am.St.Rep. 912.' In the case of Smith v. Traxler, 224 S.C. 290, 78 S.E.2d 630, 632, this Court, in permitting a defendant to amend his answer to set up the Statute of Frauds as a defense, said: "It is the gen......
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