Opinion
10864
April 11, 1922.
Before MEMMINGER, J., Hampton, August, 1921. Affirmed.
Action by W.J. Jumper against Dorchester Lumber Co. et al. From order refusing to make the complaint more definite and certain the defendants appeal.
Mr. Legare Walker, for appellants, cites: Refusal of motion was denial of a substantial right and appealable: Code Proc. 1912, Secs. 11 D. 210; 11 S.C. 122; 36 S.C. 559; 52 S.C. 584; 78 S.C. 327; 32 S.C. 102; 34 S. C . 345; 68 S.C. 494; 101 S.C. 437; 71 S.C. 29; 74 S.C. 430; 42 S.C. 547; 87 S.C. 254; 60 S.C. 521. Contract for sale of lands or an interest therein must be in writing: 1 Civ. Code 1912, Secs. 3737; 7 Rich Eq. 378; 13 Rich. Eq. 250; 27 S.C. 348; 33 S.C. 367; 85 S.E. 84; 101 S.C. 170; 106 S.C. 7; 5 S.C. 87; 28 S.C. 172. Demurrer would be proper if essential part of contract is parol: Code Proc. 1912, Sec. 194, Sub. 6, Sec. 196; 57 S.C. 147; 60 S.C. 373. Motion is proper procedure: 79 S.C. 460; 11 S.C. 123; 60 S.C. 521; 65 S.C. 222; 66 S.C. 12.
Messrs. Brown Bush and George Warren for respondent.
April 11, 1922. The opinion of the Court was delivered by
Action for compensation as purchasing agent of the defendant company in the acquisition of certain real estate. The plaintiff alleges a contract, partly in writing and partly in parol, by which his compensation was to be measured either by a conveyance to him of the land with a reservation of the timber rights, or by payment to him of 50 cents per thousand feet of timber on the property purchased, estimated on a stumpage basis; that in compliance with said contract he negotiated for the company the purchase of certain lands for which the defendant paid $150,000; that there are 100,000,000 feet of timber thereon, estimated upon a stumpage basis; that the land, exclusive of the timber, is worth $60,000.
The defendants moved for an order requiring the plaintiff to make his complaint more definite and certain by specifying the oral and written parts, respectively, of the contract. The motion was refused, and the defendants appeal. The respondent moves to dismiss the appeal upon the ground that the order is not appealable until after final judgment.
The plaintiff has jumbled three separate and distinct causes of action in one complaint: (1) An action for specific performance of a contract by which he was entitled to a conveyance of the land, exclusive of the timber rights; (2) an action to secure an interest in the land to the extent of $60,000 with a lien thereon therefor; (3) an action for 50 cents per 1,000 feet of timber on the land, estimated at 100,000,000 feet, $50,000.
It is impossible to tell from the complaint which of these causes of action the plaintiff intends to rely upon; he has the legal right to rely upon any one that he chooses. It is a proper case for a motion by the defendants to require the plaintiff to elect upon which cause of action he will proceed to trial.
Should he elect to proceed upon the equitable cause of action for specific performance of the alleged contract to convey to him the land exclusive of the timber, the following principles would be applicable: The plaintiff is under no obligation to describe the character of the evidence upon which he relies to establish the contract and a complaint alleging the execution of a contract without reference to such character would not be subject to a demurrer or to a motion to make definite and certain. Groce v. Jenkins, 28 S.C. 172, 5 S.E. 352. If the allegation had been that the contract was wholly in parol, the defendants demurrer under the statute of frauds would have been entertained. Williams v. Salmond, 79 S.C. 460, 61 S.E. 79. Mendelsohn v. Banov, 57 S.C. 147, 35 S.E. 499.
As the allegation is that the contract was partly oral and partly written, it must be assumed that the oral part was an essential, or at least an important, element; the defendants would be entitled to be informed as to this, in order that they might shape their future course in pleading. Should he elect to proceed upon the equitable cause of action to secure an interest in the land to the extent of $60,000, with a lien thereon therefor, the same principles would be applicable. Should he elect to proceed upon the legal cause of action for 50 cents per 1,000 feet of timber, such a contract would not be within the statute of frauds, and there would be no necessity for a specific statement of what part of it was in writing and what in parol, as he would be entitled to rely upon either or both elements.
Under the case of Blakely v. Frazier, 11 S.C. 123, the order appealed from affects a substantial right, involves the merits, and is appealable. See, also, Hawkins v. Wood, 60 S.C. 521; 39 S.E. 9. Bolin v. Ry. Co., 65 S.C. 222, 43 S.E. 665. Lynch v. Spartan Mills, 66 S.C. 12, 44 S.E. 93.
The judgment of this Court is that the respondent's motion to dismiss the appeal be refused, and that the order appealed from be affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.
MR. JUSTICE WATTS did not participate on account of sickness.