Opinion
8846
May 6, 1914.
Before GAGE, J., Winnsboro, January, 1914. Reversed.
Action by Germofert Fertilizer Company against A. Lee Scruggs to recover purchase price for fertilizers sold. From an order striking out counterclaim in answer as sham, defendant appeals.
Mr. Geo. W. Ragsdale, for appellant, cites: General denials: 9 S.C. 439. Allegations of fraud: 61 S.C. 190; 62 S.C. 42; 78 S.C. 482; 50 S.C. 397; 80 S.C. 298; 58 S.C. 56; 26 S.C. 275; 2 Hill L. 657; Bliss Code Pldg. 211; 95 S.C. 390; Crim. Code, sec. 507. Counterclaim: Code Civil Proc. 200; 11 S.C. 337; Simpkins v. R.R. Co., 20 S.C. 258; 71 S.C. 404; 43 S.C. 63; 34 Cyc. 703, 706. Failure of consideration: 40 S.C. 31; 80 S.C. 297; 85 S.C. 492; 77 Cyc. 493. Fraud: 70 S.C. 115; 2 Rich. L. 154; 20 S.C. 503; 64 S.C. 69; 68 S.C. 106; 71 S.C. 150. Frivolous pleading: 27 S.C. 164.
Messrs. Nathans Sinkler, for respondent, cite: Essentials in alleging fraud: 31 Iowa 344. Contract in writing clear and unambiguous, parol testimony inadmissible to prove allegations: Wald's Pollock, Contracts 457; 69 S.C. 99; 1 Greenleaf Ev. 227, 275; 27 S.C. 380; 83 S.C. 205; 74 S.C. 576; Pom. Code Rem. 641.
May 6, 1914. The opinion of the Court was delivered by
The facts in this case are similar to those in the case of Germofert Mfg. Co. v. S.F. Castles, 81 S.E. 665, in which the opinion has just been filed. In that case, the motion to strike out certain allegations in the defenses set up in the answer was made upon the ground that said allegations were sham and irrelevant, while the motion in the present case was based upon the ground that similar allegations were irrelevant and redundant.
There is no difference in principle between the two cases.
Order reversed.
MR. JUSTICE GAGE did not sit in this case.