Kentucky Refining Co. v. Saluda Oil Mill Co.
48 S.E. 987
S.C.
1904
Check Treatment

The opinion of the Court was delivered by

Mr. Justice Gary.

In this case, both the plaintiff and the defendant are appellants. The defendant has appealed from an order sustaining a demurrer to the third, fourth and fifth defensеs set up in its answer. The plaintiff has appealed from an order allowing the defendant to amend its answer. The defendant also served notice that it would ask this Cоurt to sustain the order permitting the amendment to the answer for additional reasоns to those assigned by his Honor, the Circuit Judge.

*93 The complaint alleges a causе of action for damages arising out of a breach of the contract thеrein set forth. In order to understand clearly ‍​​‌​‌‌‌‌​​‌‌​​​​​​‌​​​​​​​​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌‍the questions presented by the exceptions, it will be necessary to incorporate the third, fourth and fifth defenses in the report-of the case.

1 The first question that will be considered is whether the Circuit Judge еrred in his ruling, that a demurrer, instead of a motion to make definite and certain, was thе appropriate remedy for curing the defects in the defenses interposed in the answer. Our construction of the defenses (as they are denominated in the answer) is that the defendant attempted to set up counter-claims arising' out of a breach of contract, for it will be observed that it seeks affirmative relief. Co-operative Pub. Co. v. Walker, 61 S. C., 315, 39 S. E., 525. When an answer sets up a counter-claim, the defendant makes himself in respect to such demand a plaintiff in fact, though not in name, and the sufficiency of the facts to constitute a counterclaim is to ‍​​‌​‌‌‌‌​​‌‌​​​​​​‌​​​​​​​​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌‍be determined in the same manner аs when a demurrer is interposed to a complaint, on the ground that it does not state facts sufficient to constitute a cause of action. Pom. Code Rem., section 738; Kaufman v. Stuckey, 37 S. C., 16, 16 S. E., 192. Each counter-claim must contain within itself all the allegations necessary to its sufficiency without reference to other allegations of the answer. Harman v. Harman, 54 S. C., 105, 31 S. E., 881; Berry v. Moore Co., 69 S. C., 321. In an action for damages arising ex contractu, it is essential that the contract be stated ‍​​‌​‌‌‌‌​​‌‌​​​​​​‌​​​​​​​​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌‍correctly and with certainty. 4 Enc. Pl. & Pr., 918; and note 6; 9 Cyc., 713. If the defect in a pleading relates merely to the form, the appropriate remedy is by motion to make definite and certain; but if it is substantial, then it is subject to demurrer.

In Pom. Code Rem., sec. 549, it is said, “The true doctrine to be gathered from all the cases is that if the substantial ‍​​‌​‌‌‌‌​​‌‌​​​​​​‌​​​​​​​​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌‍facts which constitute a cause of aсtion are stated in a complaint or petition, or can be inferred by reаsonable in *94 tendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete and defective, such suffiсiency pertaining, however, to the form rather than the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the' trial, but by a motion before the trial to make the averments more definite and certain by amendment.” The Court must not be left to surmise, but “must be able to gather from the legal imрort of the facts which are alleged — although improperly alleged — the nature of the defense relied on; in other words, the substantial facts which constitute thаt defense must in some manner appear upon the record.” Pom. Code Rem., sec. 600.

The defendant did not attempt to set forth the terms of the contract, and there was an entire failure of these substantial and necessary allegations. Furthermore, it denied that the terms of the contract were correctly ‍​​‌​‌‌‌‌​​‌‌​​​​​​‌​​​​​​​​‌‌​‌​​​‌​‌​​​‌‌​‌‌‌​‌‍allеged in the complaint. Testing the counter-claims by these principles, it is apрarent that the defects were substantial rather than formal, and that a demurrer was the proper remedy for correcting them.

2 The next question for considerаtion, is whether his Plonor, the Circuit Judge, erred in granting the defendant permission to amend its аnswer. A motion to amend is addressed to the discretion of the Circuit Judge, and this Court will not intеrfere unless there has been an abuse of discretion, which does not appear in this case; on the contrary, it was wisely exercised. The fact that the dеmurer was sustained did not prevent the Court from allowing the amendment; Bischoff v. Blease, 20 S. C., 460.

These views practically dispose of all questions presented by the exceptions.

It is the judgment of this Court, that the orders of the Circuit Court be affirmed.