Burkhalter v. Townsend , 139 S.C. 324 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] May 5, 1927. The opinion of the Court was delivered by This is an appeal from an order of his Honor Judge Henry, striking out the defendant's answer as sham and irrelevant, and as not stating facts sufficient to constitute a defense.

The cause of action of the plaintiffs is based upon allegations of fact, which are substantially as follows:

One P.L. Breeden, of Marlboro County, owned a tract of land containing 400 acres, more or less, known as Breeden-Adamville plantation, in Adamville township, of said County; on December 30, 1918, he leased it to the defendant, Townsend for a term of 5 years, beginning January 1, 1919, and ending December 31, 1923, at a yearly rental of $6,000.00, payable on or before October 1st of each year; the contract was in writing, and a copy of it said to be attached as an exhibit to the complaint, although it does not appear in the transcript; P.L. Breeden, the lessor, died about October 10, 1919, leaving a will which was admitted to probate in Marlboro county; by the will he devised the premises which had been leased, to the plaintiffs, Alma E. Burkhalter and Margaret E. Holliday, for life, which entitled them to receive the rent as it fell due under the lease to the defendant; the defendant paid the stipulated rent for the years 1919, 1920, and 1921; in the fall of the year 1921 the defendant abandoned the leased premises and has refused to pay any rent at all for the years 1922 and 1923; the plaintiffs exercised due diligence in renting the land for the years 1922 and 1923, but $3,000.00 was as much as they could get; the plaintiffs give the defendant credit upon the rent due October 1, 1922, for the $3,000.00 collected from other tenants, and also the same upon the rent due October 1, 1923, and claim the unpaid balance of $3,000.00 on the rent of 1922, with interest from October 1, 1922, and the same for 1923, with interest from October 1, 1923. (This synopsis of the complaint, is, of course, intended only as such, and by no means as an adjudication of facts.)

The defendant's answer will be set out in full by the reporter in the report of the case.

After the answer had been served, the counsel for the plaintiffs served upon counsel for the defendant notice of a motion to dismiss "the alleged answer" on the ground:

"That the same is sham, irrelevant, and does not state facts sufficient to constitute a defense."

Upon hearing the motion, his Honor Judge Henry signed an order "dismissing" the answer, for the reasons stated in the notice. The order is dated December 1, 1925.

On the same day his Honor Judge Henry signed the following order:

"Answer in the above-entitled cause having been stricken out and dismissed, it is upon motion of J.K. Owens, attorney for plaintiff, ordered, adjudged, and decreed that the above-entitled cause be and the same is transferred from calendar 1 to calendar 3.

"It is further ordered, adjudged, and decreed that the plaintiff have judgment against the defendant in the sum of $7,200.00."

Thereafter counsel for the defendant made a motion before his Honor Judge Henry for an order vacating the orders hereinbefore referred to, which was refused in an order dated December 4, 1925. It will not be necessary to refer further to this notice and order, as the questions for decision fairly arise with reference to the order striking out ("dismissing") the answer and rendering judgment in favor of the plaintiff, from which the defendant has appealed.

I. First, then, as to the order striking out the answer as sham, irrelevant and failing to state facts sufficient to constitute a defense.

(1) Is it sham? A sham answer is one good in form, but false in fact, and not pleaded in good faith; being a mere pretense, set up in bad faith and without color of fact.Bliss, Code Pl. page 645 (note 162). The motion to strike out an answer as sham presents a question of fact to be determined by the Court upon affidavits, or in such manner as the Court may direct. Union Guano Co. v. Garrison,130 S.C. 404; 126 S.E., 133. Germofert Co. v. Castles,97 S.C. 389; 81 S.E., 665. Bank v. Fripp, 101 S.C. 185;85 S.E., 1070. Chemical Co. v. Farmington, 100 S.C. 196;84 S.E., 710. The plaintiff who moves to strike out an answer, good in form, as sham, is skating upon very thin ice, in view of the right of the defendant to have the issues of fact tried by a jury and not up affidavits; the rule adopted by this Court is that the power will be very sparingly exercised, and only where the pleading is manifestly false, interposed to delay and defeat the plaintiff's action, and only in cases free from doubt. Cases above cited, and Ransom v. Anderson, 9 S.C. 438. In the Germofert Case the Court quotes 31 Cyc. 628:

"The motion to strike out a pleading or defense as sham is not looked upon with favor, and will be granted only, where the falsity clearly appears, since the truth or falsity of a pleading is ordinarily to be tried by a jury, with full opportunity for producing, examining and cross-examining witness."

It does not appear that the Circuit Judge followed the prescribed course of determining the issue of the truth or falsity of the allegations of the answer "upon affidavits, or in such manner as the Court may direct," and consequently he was in error in striking out the answer as sham.

(2) Is the answer irrelevant? An answer or a defense is irrelevant which has no substantial relation to the controversy between the parties to an action. InSmith v. Smith, 50 S.C. 54; 27 S.E., 545, the Court quotes Pomeroy, Code Remedies, § 661.

"An allegation is irrelevant, when the issue formed by its denial can have no connection with, nor effect upon the cause of action (quoted also in the Germofert Case)."

The motion of the plaintiff is directed against the entire answer as irrelevant, and not to the separate defenses severally. If, therefore, the answer puts in issue any material fact which the plaintiff was required to prove, the motion must fail.

The answer contains allegations which were clearly subject to a motion to make more definite and certain, but the indefiniteness, uncertainty, or insufficiency of an allegation or a defense does not make it irrelevant.

The plaintiffs sue for damages on account of the defendant's breach of his renting contract. It was their duty to minimize their damages as far as they could reasonably do so. They recognize this obligation in the allegation that, after the defendant abandoned the premises, they advertised the place for rent and obtained as fair a rental as they could have done. The defendant denies these allegations and necessarily put the plaintiffs to proof of them. Other allegations of the complaint are put in issue by the answer, but this is sufficient to relieve it of the vice of irrelevancy as a whole.

The first defense, supposed to constitute a general denial, has not been considered for the reason that it is not in the proper form of a general denial. In some jurisdictions such form has been approved, but the trend of authority is a criticism of it. Bliss, Code Pl. § 331; 31 Cyc. 196.

(3) As to the failure to state facts sufficient to constitute a defense: This is a matter which could be taken advantage of by a demurrer and not by a motion to strike. The point is conclusively settled by theGermofert Case above cited.

II. Second, as to the order for judgment: Assuming the correctness of the order striking out the answer, the effect of it would have been the same if no answer had been served. The case should have then been transferred to calendar 3 (as was done in this case), and the same proceedings had as in an application for judgment by default, under Section 526 of the Code of Civil Procedure, in cases of unliquidated demands, as this was, by proof in open Court and the verdict of a jury.

The judgment of this Court is that the orders of the Circuit Court appealed from be reversed, and that the case be remanded to the Circuit Court for further proceedings not inconsistent with the conclusions herein announced, without prejudice to the right of the plaintiffs to move for an order making the answer more definite and certain, or to demur to the answer or to any of the alleged defenses therein set forth, as they may be advised.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES STABLER and CARTER, and MR. ACTING ASSOCIATE JUSTICE WHITING, concur.