Powell v. Adams, 11667

11667 | S.C. | Feb 7, 1925

February 7, 1925. The opinion of the Court was delivered by This suit was commenced in the County Court of Richland County, in March, 1924. A demurrer to the complaint was sustained by the trial Judge and the complaint dismissed. Prior to this suit had been brought under the same title, which had likewise been dismissed on demurrer. After the dismissal of the first suit, the plaintiff paid the costs thereof and began the present one under a complaint which will be reported.

The only question involved in this appeal is whether or not the complaint states one cause of action against the two defendants, or a separate cause of action against each defendant.

A principle of law applicable to this case is too well settled to require the citation of authority: The demurrer admits as true all allegations of the complaint for the purposes of the demurrer.

Even though we were concerned with the first complaint, which is printed in the record under the order of the trial Judge, it appears that there are material differences between the two. There was no appeal from the order sustaining the demurrer to the first complaint and that complaint is out of consideration in the present case.

The complaint shows on its face that the goods were furnished for the benefit of Adams, as they were to be used in the erection of a garage on his property, and that credit was extended on the faith of the promise to pay by Foard and the guaranty by Adams. These allegations must be taken as true for the purposes of the demurrer. Although the complaint uses the word "guaranty," yet the facts, as disclosed by the complaint and admitted by the demurrer, show that the "guaranty" was in reality an original undertaking on the part of Adams for his personal benefit. See Gaines v. Durham, 124 S.C. 435" court="S.C." date_filed="1923-05-08" href="https://app.midpage.ai/document/gaines-v-durham-3875737?utm_source=webapp" opinion_id="3875737">124 S.C. 435;117 S.E., 732" court="S.C." date_filed="1923-05-08" href="https://app.midpage.ai/document/gaines-v-durham-3875737?utm_source=webapp" opinion_id="3875737">117 S.E., 732.

Such being the case, the complaint states one cause of action against two defendants and not a separate cause of action against each defendant.

Judgment reversed and cause remanded for trial.

MESSRS. JUSTICES WATTS, FRASER, and MARION concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN did not participate.