Wilkins v. Howe Grain Mercantile Co. , 111 S.C. 82 ( 1918 )

June 28, 1918. The opinion of the Court was delivered by This is an appeal from an order of nonsuit, on the ground that the only cause of action alleged in the complaint is founded upon fraud, and that there was no testimony tending to sustain such allegations.

As the construction of the complaint is involved, it will be reported.

The allegations of the complaint, that the plaintiff and the defendant entered into the contract therein described, and that the defendant committed a breach thereof, from which the plaintiff sustained damage, were, in themselves, sufficient to constitute a cause of action arising ex contractu.

There are allegations, also, not only appropriate to an action for damages arising ex contractu, but, to the effect, that the breach of contract was accompanied by a fraudulent act.

The allegations are also appropriate to an action of tort, committed with a fraudulent intent.

The defendant did not make a motion to require the plaintiffs to make the complaint definite and certain, or to elect upon which cause of action they would proceed to trial.

Under such circumstances this Court will not undertake to say what particular cause of action the plaintiffs have attempted to set forth, and to which they should be confined in determining the sufficiency of the complaint. Welbornv. Dixon, 70 S.C. 108.

The pleadings show that the plaintiffs brought an action in the Court of Common Pleas for Spartanburg county, to recover a certain sum of money alleged to be due them by the defendant, a nonresident of this State, whose domicile is in the State of Texas. The plaintiffs instituted attachment proceedings, also, under which a carload of oats which had been shipped into this State by the defendant, was seized.

The plaintiffs and the defendant then agreed upon a compromise, whereby the plaintiffs agreed to accept $112.50, in settlement of their claim, and to withdraw their action and the attachment proceedings. The defendant agreed to pay the plaintiffs the sum of $112.50, which was to be deposited in the National Bank of Howe, in the State of Texas, to the credit of the plaintiffs. The plaintiffs complied with their part of the contract, and the defendant deposited the sum of $112.50 to the credit of the plaintiffs in the said bank. The defendant, however, instituted garnishment proceedings for the recovery of the said sum in the hands of the bank, which refused to honor the plaintiffs' draft.

The question is whether the conduct of the defendant, in preventing the payment of said sum to the plaintiffs, was a breach of contract for which it was liable in damages.

The defendant did not comply with all the conditions imposed upon it, when it deposited the money in the Texas bank. The law imposed upon it the additional obligation of acting in good faith, and, it failed to comply with this duty, when it undertook to use such methods as would enable it to evade performance of its contract, by preventing the money from being paid to the plaintiffs. The provision in the agreement, that the money should be deposited in the Texas bank for the benefit of the plaintiffs, was merely inserted as a convenient method of sending it, but the intention of the parties was that it should be paid to the plaintiffs.

This Court will not give its sanction to the conduct of the defendant, and allow it to prevent the actual payment to the plaintiff, which justice, equity and good faith required it to make, otherwise the defendant would be allowed to take advantage of its own wrong.

Furthermore, the only reasonable inference from the defendant's answer, is, that the proceedings instituted by the defendant in the Texas Court, were to recover an amount alleged to be due by the plaintiff, which was included in thecompromise; and, therefore, could not be made the basis ofanother action.

It thus clearly appears, that there was evidence at least tending to sustain the allegations of damages arising excontractu.

Therefore, there was error in granting the nonsuit.

The plaintiffs made a motion to amend their complaint by making the Texas bank a party defendant, which was refused.

As the order refusing the motion to amend was based upon a misconception of the issues raised by the pleadings, it must, also, be set aside.

Reversed.