Appeal
from Common Pleas Circuit Court of Anderson County; Aldrich
Judge.
Woods
J., dissenting.
This is
an appeal from an order overruling a demurrer to the
complaint on the ground that it did not state facts
sufficient to constitute a cause of action. The complaint
contains two causes of action, the first of which is thus
alleged:
"(1) That prior to the ______ day of March, 1902
plaintiff was the sole owner in fee simple of a tract of land
in county and state aforesaid, containing twenty-seven acres
more or less, just outside the town of Pelzer, conveyed to
him by Sarah M. Allen by deed of September 10, 1897, recorded
in the office of R. M. C. for said state and county, in Book
QQQ, at page twenty, which is here referred to for full
description of said land.
(2) That on March 15, 1902, the plaintiff, having borrowed
money of defendant, and purposing to secure the payment of
the debt, executed to him a deed to said land, and both
together executed at the time of the execution of the said
deed a written contract, a copy of which is as follows:
'State of South Carolina, County of Anderson. Articles of
agreement entered into this 15th day of March, 1902, between
J. W. Dixon and J. W. Welborn, witnesseth: That provided J.
W. Welborn shall pay to J. W. Dixon on or before November
1st, 1902, the sum of three hundred and eighty-five dollars,
the said J. W. Dixon agrees to deed back to J.
W. Welborn said piece of land, containing 27 acres, more or
less, and to pay him ten per cent. interest on said amounts,
and all costs. [ Signed] J. W. Dixon. [ L. S.] J. W. Welborn.
[ L. S.] Witnesses: [Signed] A. G. Pinckney, L. B.
Roberts.' Said deed was an ordinary fee-simple warranty
title, like in all respects to the usual form of such titles.
(3) That the amount of the plaintiff's debt to defendant,
together with principal, interest, and all charges, never
exceeded the sum of three hundred and eighty-five and 00/100
dollars ($385.00), and the purpose and understanding of the
parties to the agreement was that the papers hereinabove
referred to should constitute a mortgage upon said land to
secure the payment of said debt.
(4) That some months before November 1, 1902, defendant, in
utter disregard of his contract to reconvey to plaintiff, in
willful fraud of his said agreement, and in flagrant,
deliberate, and wanton violation of plaintiff's rights in
the premises, sold and transferred and conveyed said land to
a third party; thus putting it out of his power to carry out
his contract aforesaid.
(5) That a few days prior to November 1, 1902, plaintiff, by
his attorney, made defendant a legal tender of the sum of
three hundred and eighty-five and 00/100 dollars ($385.00) to
secure a reconveyance from him of said land, but defendant,
as plaintiff is informed
and believes, refused said tender, stated that he had sold
said land to Mr. J. W. Williams, and that he could not and
would not reconvey it to plaintiff, and declared, as he had
done repeatedly, that he would spend a thousand dollars on
the matter rather than let defendant have anything out of it.
And he has subsequently refused and still refuses to carry
out said contract, in violation both of the spirit and letter
thereof. All to plaintiff's damage two thousand
dollars."
The
second cause of action contains substantially the same
allegations as the first, except the following, instead of
paragraphs 4 and 5 of the first cause of action, to wit:
"(9) On information and belief, plaintiff
says as follows: Some months prior to November 1, 1902,
defendant, in willful fraud of the rights of plaintiff, and
with the deliberate, wanton, and willful purpose of
defrauding him, of violating the trust that arose under the
facts of the case, and of fraudulently converting to his own
use the whole proceeds of his sale of said land, in fraud of
plaintiff's rights therein, did sell, transfer, and
convey said land to Mr. J. W. Williams for the sum of six
hundred dollars, in cash and chattels, and did collect and
appropriate to his own use all of said cash and chattels,
refusing to account to plaintiff for any part thereof, and
declaring that he would spend one thousand dollars in this
matter before defendant should have one cent. Plaintiff was
prepared before November 1, 1902, to pay to defendant the
said sum of three hundred and eighty-five dollars ($385), and
a few days before that time he got the money, and made,
through his attorney, a lawful tender of the full amount due
defendant, but he refused, has since refused, and still
refuses to accept the same and account to plaintiff for the
proceeds of his unauthorized dealing with said land, or any
part thereof, all to plaintiff's damage two thousand
dollars. Wherefore plaintiff prays judgment against the
defendant for two thousand dollars and the costs of this
action."
The
grounds of demurrer to the first cause of action are as
follows:
"(1) Because the contract set out in paragraph 11, the
refusal of performance of which is made the basis for the
first cause of action, is void under the statute of frauds,
in that it appears on the face thereof that said agreement
for the sale of the land is too indefinite, in that the
agreement set out does not so describe the property as to be
identified by the court, and it is submitted that an action
for damages does not arise from the breach of a void
agreement.
(2) Because it appears upon the face of said complaint that
said cause of action alleged therein is not founded upon a tort, where some right of person or property is
invaded maliciously, violently, wantonly, or with reckless
disregard of social or civil obligations; that whatever
rights plaintiff has in the premises arise solely ex
contractu, by a breach, rescission, or refusal of defendant
to perform the alleged executory civil agreement for the sale
of land, and no facts are alleged and no damages are shown as
arising from the natural results of a breach of said
agreement, and defendant submits that an action for exemplary
damages does not lie for the breach of an executory agreement
for the sale of land.
(3) Because it appears upon the face of the complaint that
the defendant has rescinded or refused to perform the alleged
agreement for the sale of land set out in paragraph 11 of
said complaint; and since such refusal or rescission is not a
tort, in law, sounding in punitive damages, and no facts
appearing in the complaint that plaintiff has been damaged
from the natural results of the alleged refusal to perform
said agreement, it is submitted that plaintiff cannot
maintain said cause of action."
The
grounds of demurrer to the second cause of action are
substantially the same as the foregoing.
Tribble & Prince and Quattlebaum & Cothran, for appellant. B. F.
Martin and G. B. Green, for respondent.
GARY,
A. J. (after stating the foregoing facts).
We do
not deem it necessary to consider the assignments of error in
detail, but will state the principles that will dispose of
all the exceptions.
We will
first consider whether there was error in overruling the
demurrer to the first cause of action. A complaint is not
subject to demurrer if its allegations show that the
plaintiff is entitled to any relief whatever, even though it
may be different from that to which the plaintiff supposes he
is entitled. Ladson v. Mostowitz, 45 S.C. 388, 23
S.E. 49; Strong v. Wier, 47 S.C. 307, 25 S.E. 157;
Conner v. Ashley, 49 S.C. 478, 27 S. E.
473. When the allegations of the complaint are appropriate to
more than one cause of action, the remedy is not by demurrer,
if any of the allegations are sufficient to constitute a
cause of action, but is thus stated in Cartin v. Ry.
Co., 43 S.C. 221, 20 S.E. 979, 49 Am. St. Rep. 829:
"If two causes of action were set forth in the complaint
without being separately stated, the defendant, it is true,
had the right to make a motion that the complaint be made
more definite and certain, or, if allegations were made which
were unnecessary to sustain the cause of action stated in the
complaint, to make a motion to strike out such allegations as
irrelevant and as surplusage. Pom. R. & R. R. § § 447, 451.
If the defendant waived said objections by failing to make
such motions, then the plaintiff had the right to the relief
to which all the allegations showed he was entitled. The
plaintiff, where the allegations of the complaint are
appropriate to either of the two causes
of action, may be required, upon motion of the defendant, to
make his election as to the cause of action upon which he
will proceed to trial." Citing Westlake v.
Farrow, 34 S.C. 270, 13 S.E. 469; Hammond v. R.
R., 15 S.C. 10; and Hellams v. Switzer, 24 S.C.
39. Under such circumstances, this court will not undertake
to say what particular cause of action the plaintiff has
attempted to set forth, and to which he should be confined in
determining the sufficiency of the complaint. This would be
an election of remedy by the court instead of the plaintiff.
The case of Cartin v. R. R., supra, has been affirmed in a
number of subsequent cases, the most recent of which is
Marion v. Charleston, 68 S.C. 257, 47 S.E. 140.
The
words in the agreement, "deed back," show that it
had reference to the land which had been conveyed by the
plaintiff to the defendant; and, as the description of the
land could be made certain by referring to that conveyance,
the agreement was not subject to the objection set forth in
the ground of demurrer numbered 1. That must be regarded as
certain which can be made certain.
We do not, however, regard this question of vital
importance, for, even if said...
