Cline v. Southern Ry. Co. , 110 S.C. 534 ( 1918 )

March 21, 1918. The opinion of the Court was delivered by The plaintiff alleged in one complaint two causes of action, one for a fraudulent breach of an alleged contract, and another for a procurement to be made of that contract by the use of words with a fraudulent intent. The defendant demurred to the complaint on sundry grounds. The demurrer was sustained in part and overruled in part. Both sides have appealed. Let the pleadings, the order of the Court, and the several exceptions be reported. The action for tort to which this cause is sequel has been tried, and went against the plaintiff on issues of law. 101 S.C. 493, 86 S.E. 17. In the action for tort the railroad company, amongst other defenses, set up a release by the plaintiff which discharged the defendant from further liability. The Court which tried that cause did "not pass on the validity or invalidity of the release." Nor did this Court consider that circumstance.101 S.C. 496, 86 S.E. 17. The instant action in one way or another springs out of the execution of that release and the circumstances attending it.

The defendant has made a preliminary exception to the order of the Circuit Court which settled the case for appeal. The matter in the case proposed by the appellant and objected to by the defendant and allowed by the Court was only a historical statement of part of the procedure in the trial of the action for tort; and it was altogether proper to insert it in the present case for an understanding of the issues now made in the instant action. The other exceptions we shall not follow in the order of their statement, but rather in a dependent order.

The first cause of action alleges a contract for employment induced by the deceit of the defendant; it affirms the contract and sues in damages for the deceitful breach of it. The Circuit Court held: (1) That allegations in the first cause of action were too vague to state a case; (2) that there is no allegation to show that the plaintiff is ready to perform his part of the contract he alleges; (3) that the allegations made, if true, do not make a case of fraud; and (4) that there is no allegation that plaintiff was, at the instant of their making, ignorant of the truth of the defendant's false doings. The Code of Procedure directs that: "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed." Section 209. Guy v. McDaniel, 51 S.C. 436,29 S.E. 196.

This, then, is the rule of construction to guide the inquiry. The complaint very plainly charges that the plaintiff was injured while in the service of the Southern Railway Company; that for such injury he accepted as the "chief consideration" from the company the promise of employment, and made a contract to that end, whereupon he released the company from further liability; that the company did not give him the employment, and never intended to give him employment, and had the present purpose when the promise to that effect was made not to give the employment; and only made the false promise in order to mislead the plaintiff into signing the release. (Paragraphs 6 and 8 of the complaint.) That is a statement of conduct induced by an intent charged to be fraudulent. The vagueness alleged by the defendant to lie in the contract consists in three elements: (1) No certain class of work was specified; (2) no certain period of time was specified for the contract to last; (3) no definite compensation for the work was named. It is true that an action will not lie for the breach of a contract unless its terms shall be reasonably certain. But parol contracts are well-nigh always of doubtful import. The plaintiff was a laborer, and he set up with reasonable certainty such a contract as is generally made by large employers with laborers. Such a man must go, or come, or do, as he is ordered to, and wisely so. The important element of the contract was employment. The exact pay, the particular task, the length of service were secondary matters.

In actions for the breach of a contract the exact terms of the contract are not required to be proven with the same certainty as in actions for the specific performance of contracts. Note 26, Am. Dec. 663. The plaintiff when the trial comes must prove enough of a contract to warrant a finding by the Court and jury.

The Court held that the allegations of the first cause of action were fatally defective: (1) For failure to declare that the plaintiff was ready to perform his part of the contract of employment; and (2) for failure to declare that the plaintiff was at the instant of their making ignorant of the falsity of the defendant's declarations and intentions. The respondent has made no argument to sustain the Court. The complaint alleges that the defendant refused to give the plaintiff employment; it was, therefore, unnecessary for the plaintiff to allege that he was ready to accept employment; that would have been an idle performance. 13 C.J., pp. 662, 728; 6 R.C.L., p. 847.

The complaint also alleges that the defendant's conduct in making of a contract for the plaintiff's employment was not done in good faith and with an intention to perform it, but with the contrary intention to beguile and deceive the plaintiff. The necessary inference to be drawn from those allegations is that the plaintiff did not know the defendant's fraudulent intent, else he would not have renounced his action by giving the release. It would have been better pleading had the plaintiff expressly alleged both his ignorance of the deceit and his reliance upon it.

The Court overruled so much of the demurrer as charged that the contract for employment was obnoxious to the statute of frauds, and the defendants have appealed from that order. The contract pleaded is that the defendant "agreed and promised to give to the plaintiff a position of foreman, or some similar position, for an indefinite period so long as plaintiff's work was satisfactory." The word of doubtful import in the contract, when it comes to an application of the statute, is "indefinite." That word does not mean perpetual employment, but uncertain employment as to time. That is made doubly plain by the words which follow "indefinite," to wit, "so long as the plaintiff's work was satisfactory." Plainly, then, the contract has not certainly put the performance of it beyond a year after its making. The case does not come within Jones v. McMichael, 12 Rich. 176, cited by the appellant, as that case is construed in Wallser v. R.R. Co., 26 S.C. 89, 1 S.E. 366. There are no circumstances pleaded in the instant case to show that the contractors certainly intended the contract to be performed after the lapse of 12 months from its making. The period of its performance was left uncertain. "In order to make a parol contract void it must be apparent that it was the understanding of the parties that it was not to be performed within a year from the time it was made." Miller, J., in McPherson v. Cox, 96 U.S. 416, 24 L.Ed. 746. The contract pleaded does not fall within the statute.

The second cause of action disaffirms the contract for employment, and sues at law in damages for the wrong he sustained in the deceitful beguilement into the making of it. The brunt of the appellant's argument, upon the demurrer to this cause of action, is that the "alleged representations do not constitute fraud in law, because they do not relate to past or present facts." A second, and the only other contention in the brief, is that "the allegations of the complaint show that the damages are purely speculative, and for that reason no cause of action arises." These in their order.

The appellant's brief asserts:

"That the basis of the alleged fraud consists in certain representations made to the plaintiff as to giving him future employment. It is submitted that these alleged representations do not constitute fraud in law because they do not relate to present or past facts."

That is not an entirely correct statement.

The fifth paragraph of the complaint does declare that the promise of future employment was among the considerations which moved the plaintiff to execute the release. But the eighth paragraph charges that the plaintiff was told by the surgeons for the defendant that his injuries were insignificant, and that the surgeons then knew that such statement was not true, but was false, and the statement contributed to induce the plaintiff to release his right of action. And the ninth paragraph repeats and amplifies allegations of like character. It is so manifestly plain from the statement itself that if the plaintiff had a cause of action against the defendant for a serious permanent bodily harm, and if the defendant's surgeon persuaded him by false words and with wicked intent to believe that his harm was not great, but only temporary, and for that reason, relying on the surgeon's opinion, the plaintiff released his action, then such conduct on the defendant's part is an actionable wrong. Ballengerv. Railroad, 106 S.C. 203, 90 S.E. 1019.

The appellant, under the second head before stated, relies on Whitman v. Railroad, 107 S.C. 200, 92 S.E. 861, for the postulate he states, and which is quoted supra. But the demurrer admits for the time being the truth of the allegations of the complaint.

There is nothing in the complaint to conclusively show that all the damages alleged are speculative. It remains for the proof to ascertain if there was any damage which resulted from the alleged and for the present admitted deceit.

We are now better prepared to inquire if the two causes of action before stated may be united in one complaint. The Circuit Court held that the plaintiff had improperly united two causes of action in one complaint, and the plaintiff excepts. Section 218 of the Code governs the case. It allows inter alia two causes of action to be so united where the two causes arise out of a transaction connected with the subject of the action. The italics are supplied. One cause of action was on the fraudulent breach of a parol contract; the other cause of action was on the fraudulent procurement of the parol contract; both these arose out of the release, which was the transaction; and the release was connected with the tort, which was the subject of the action. Pomeroy's Remedies, secs. 475, 775, et seq.

Without any verbal and lengthy discussions of the words of the Code of Procedure, or of the cases, the two causes of action pleaded are so allied in substance and in time and in parties as to make them so akin as to be tried together. As to parties see Pomeroy, sec. 479; Whiteside v.Brawley, 152 Mass. 133, 24 N.E. 1089, a Massachusetts case, opinion by Holmes, J. The object of the framers of the Code of Procedure was to secure the trial, for all parties interested in the cause, of those issues which practically had the same birth. A too literal reading of the statute would impede rather than promote the orderly administration of justice.

The order of the Circuit Court is reversed and affirmed in the particulars we have noticed; and the cause is remanded to that Court, with leave to defendant to answer within 20 days after the filing of this opinion.