Opinion
14454
March 17, 1937.
Before JOHNSON, J., Hampton, July, 1936. Affirmed.
Action by George Warren against Herbert C. Peeples and Hamilton Ridge Realty Corporation. From a judgment for defendants, plaintiff appeals.
The order of Judge Johnson follows:
This matter comes before me on demurrers interposed by both of the defendants to the complaint, upon the grounds set forth in the two demurrers. The facts, as alleged in the complaint, are briefly as follows:
That in February, 1936, the plaintiff, having heard that the property mentioned in the complaint was for sale, went to the defendant Herbert C. Peeples, who was alleged to be the caretaker or man in charge of the property, and upon inquiry was told that the said property was for sale, and that the price was $35,000.00, and mentioned the terms which could be obtained from the Hamilton Ridge Realty Corporation; that he inquired of the defendant Peeples if he was to receive any commissions, and was told by the said Peeples that he was not to be paid any commissions, but that he thought the owner would give him something like a thousand dollars, and that thereafter the plaintiff, together with Peeples, conferred with Lawrence, the president of Hamilton Ridge Realty Corporation, who told plaintiff that he would sell the property for the price of $35,000.00, and on the terms mentioned in the complaint; that thereafter a contract of purchase and sale was duly entered into, in writing, between the plaintiff and the defendant Hamilton Ridge Realty Corporation, at the price and upon the terms theretofore verbally stated. The plaintiff further alleged that immediately after the contract was signed and the first payment made, contemporaneously therewith, he learned for the first time, from conversation between Lawrence and Peeples in his presence, that Peeples was to receive a commission of $3,500.00. The complaint further alleges that thereafter all parties fully complied with all the terms of the contract; and there is no allegation in the complaint that the plaintiff in any wise protested, objected to, or in any wise demurred to the commissions being paid to Peeples. The complaint then alleges that on account of the misrepresentation made to the plaintiff by Peeples in reference to the amount of commissions Peeples was to receive, and by reason of Lawrence's not informing him what Peeples was to receive, until after the contract had been executed, this concealment amounted to misrepresentation, deceit, and fraud, and resulted in damage to plaintiff in the sum of $3,500.00. The complaint does not allege that Lawrence at any time concealed or misrepresented to plaintiff any fact with reference to the amount of commissions to be paid — all that is alleged is that Lawrence named the purchase price and quoted the terms upon which the property could be bought by plaintiff. And the subsequent allegations of the complaint which, in general terms, charge both Lawrence and Peeples with fraud and misrepresentation, are without basis in fact so far as Lawrence is concerned or the complaint otherwise shows. The complaint further does not allege that, if the plaintiff had known that Peeples was to receive $3,500.00 as commissions, he would not have entered into the contract of purchase and sale, or that he was not, or would not have been willing to pay the purchase price agreed upon, but on the contrary it is alleged that, with full knowledge that the commissions were to be paid unto Peeples, plaintiff thereafter, and without any complaint or objection hereto, fully performed the contract and paid unto the corporate defendant the full purchase price out of which he then knew Peeples was to be paid the sum of $3,500.00, of which, in this action, he complains for the first time. There is no allegation that, at the time the alleged statement was made by Peeples to plaintiff as to the amount he was to receive from his co-defendant for the sale of the property, such statements were made by him while acting within the scope of or in the course of his employment.
It is conceded by the plaintiff that the alleged cause of action set forth in the complaint is one sounding in tort, arising out of misrepresentation, deceit, and fraud, and from a reading of the complaint it does not appear that any duty rested on either of the defendants to disclose what commissions would be paid to any one for the sale of the property. The complaint does show that the plaintiff was told what the purchase price was, and on what terms the property could be bought by him. Plaintiff agreed in writing to purchase the property at this price and on the terms named by the defendant Hamilton Ridge Realty Corporation. He thereafter complied with the contract, received the deed, and not until then did he raise any question in regard to commissions. The complaint does not allege that he is dissatisfied with his purchase, or that there has been any failure of consideration. In the opinion of the Court, it does not appear in the allegations of the complaint that either of the defendants violated any duty to the plaintiff, or committed any wrong against him, or concealed any material fact as to value, acreage, or other matter, which it was their legal duty to disclose. Under the allegations of the complaint, it does not appear to the Court that the plaintiff has suffered or will suffer any recoverable damages by reason of the payment of commissions by the Hamilton Ridge Realty Corporation to its codefendant, Mr. Peeples.
After giving careful consideration and due weight to all of the allegations of fact alleged in the complaint, and after applying to these facts the law, I cannot escape the conclusion that the plaintiff has failed to state a cause of action against either of the defendants, either for violation of contract or for fraud and deceit. This being the case, the Court is forced to sustain the demurrers.
Wherefore, on motions of defendants' attorneys, it is hereby ordered that the demurrers herein be, and the same hereby are, sustained, and the complaint dismissed.
Further ordered that the attachment heretofore issued herein be, and the same hereby is, dissolved; and the sheriff of Colleton County is hereby authorized and directed to deliver to the defendant Hamilton Ridge Realty Corporation, or to its attorneys, the property attached, and now held by the sheriff of Colleton County, unless the plaintiff secure an order of supersedeas within ten days after filing of this order.
Mr. J.W. Manuel, for appellant, cites: Demurrer: 162 S.C. 1; 160 S.E., 138. Fraud: 66 C.J., 576; 75 A., 331; 83 Vt., 287. Agency: 57 S.C. 16; 35 S.E., 391; 171 S.E., 170; 76 S.E., 8; 148 S.E., 318; 54 S.E., 341; 13 C.J., 395; 127 S.C. 508; 121 S.E., 547; 141 S.C. 98; 139 S.E., 190; 27 C.J., 24, 25; 224 S.W. 970; 29 N.E., 123.
Mr. Randolph Murdaugh, for respondent, Herbert C. Peeples.
Messrs. J.C. Lemacks and M.P. Howell, for respondent, Hamilton Ridge Realty Corp., cite: Right of purchaser to commissions: 9 C.J., 593; 8 A.L.R., 1383; 152 N.Y., Supp., 11.
March 17, 1937. The opinion of the Court was delivered by
The order of Judge Johnson is satisfactory to the Court. Let this order be reported as the opinion of the Court.
Affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BONHAM and FISHBURNE concur.