Welborn v. Dixon

• Court: South Carolina Supreme Court
• Citation: Welborn v. Dixon, 70 S.C. 108, 49 S.E. 232 (S.C. 1904)
• Decision Date: 10 November 1904
• Parties: WELBORN v. DIXON.

49 S.E. 232

70 S.C. 108

WELBORN v. DIXON.

Supreme Court of South Carolina

November 10, 1904

Appeal from Common Pleas Circuit Court of Anderson County; Aldrich Judge.

Action by J. Welborn against J. W. Dixon. Judgment for plaintiff and defendant appeals. Affirmed.

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...