First Trust & Savings Bank v. Pruitt

113 S.E. 469, 121 S.C. 484, 1922 S.C. LEXIS 178

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

These two actions [Nos. 10987 and 11007] were tried together. They are actions for specific performance.

I. The appellants resist specific performance, because they allege that the contract provides that, in case the buyers do not comply with their contracts, the initial payments shall be considered forfeited as liquidated damages. The cases were heard on demurrer to the complaint before Judge Ernest Moore, who overruled the demurrer. From these decrees the buyers, defendants, appeal.

The contracts must be considered as a whole. They provide at length for the enforcement of the rights of the respective parties under the contracts by legal proceedings, and the payment of the attorney’s fees by the parties who fail to carry out their part of the contract. It is manifest that, if the contract contemplated that the buyer had the right to terminate the contract by a forfeiture of the initial payment, then no legal proceedings would be had, and no attorney’s fees to be paid. Eet the decree of Judge Moore’s be reported. •

II. The defendant, Pruitt, demurs because the National Union Bank of Rock Hill is made a party, and there is no cause of action stated against the bank. The bank did not demur, and Pruitt is not injured. This exception cannot be sustained.

III. Pruitt complains that Major, with whom he made the contract, did not have title. The complaint alleged that Major made the sale under the contract with Cherry, who was the owner, and for his benefit in part, and then Cherry took an assignment of Major’s interest. Pruitt accepted this change of status, and gave his note to Cherry, who assigned the note to the bank. It is now too late for Pruitt to repudiate the contract. After Cherry accepted the note and assigned it, he is bound. •

The judgment is affirmed.