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The opinion of the Court was delivered by
Mr. Justice Watts.
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For the reasons assigned by his Honor County ■ Court Judge Whaley, it is the judgment of this Court that the judgment of the County Court should be affirmed, but, however, it be remanded to the County Court in order that the appellant be allowed to ask for an order allowing him to amend his complaint if he be so advised.
Mr. Chiee Justice Gary and Justices Fraser, Cothran, and Marion concur.
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Case posture Posture Before WHALEY, J., Richland County Court, April, 1921. Affirmed and remanded to permit amendment of complaint.Action by A. Searles against F.G. Auld. From order sustaining a demurrer to the complaint the plaintiff appeals.
The order sustaining the demurrer was as follows:
A hearing was had with both parties present upon a demurrer in the above cause; the principal issue made therein being that in the modified agreement as set forth in the complaint it appeared on the face thereof that the plaintiff had no legal right when making a tender of the balance of the purchase price to demand back a certain note which, in accordance with such modification, had been executed and delivered by plaintiff to defendant, in lieu of certain shares of stock which by their original contract were to have been assigned as a part of the purchase price on the date set for compliance.
Such a modification can be made by parol. 39 Cyc., 1351. Plaintiff, the purchaser, must allege the terms of the contract and compliance on his part therewith before he can recover damages for an alleged breach, or for deceit, of the vendor, or he must show tender in accordance therewith and a readiness to perform. Id., 1558, 1561. In the instant case it was all right for the plaintiff to have tendered something more than the modified agreement called for, to wit, the shares of stock, but, unless there was a provision in such agreement that on the date finally set for compliance he could tender such shares
and obtain a redelivery of the note, which had been admittedly given in lieu of such shares, he could not demand such redelivery. His doing so excused defendant from complying. Baker v. Gasque , 3 Strob., 25.
The mere fact that he alleges in paragraph 7 that defendant informed him that he (defendant) could not comply is not sufficient, when taken in connection with the context, which shows that a tender was attempted, to show that defendant refused because of some impossibility to comply, which would have excused tender on part of plaintiff. It only shows that defendant could not comply because plaintiff had not made a proper tender.
The fact, as alleged, that defendant at time of making the contract did not have title, is not sufficient to indicate an impossibility of compliance on his part at the date set for same. Such contracts are made under the same conditions every day. It is sufficient if, upon the date of compliance and upon a proper tender by the purchaser, the seller be ready to comply with the proper deed and a title free from the requisite incumbrances. Miller v. Cramer , 48 S.C. 282 , 26 S.E., 657 ; Mobley v. Quattlebaum , 101 S.C. 221 , 85 S.E., 585 . Source: CourtListener
