McCrae v. Spires

113 S.E. 583, 121 S.C. 147, 1922 S.C. LEXIS 191

• Court: Supreme Court of South Carolina
• Decided: September 1, 1922
• Docket: 10994
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Marion.

The appeal is from an order of Hon. S. W. G. Shipp, Circuit Judge, overruling demurrers to the first cause of action of the complaint in an action brought by plaintiff as payee to recover upon certain promissory notes. The first cause of action of the complaint will be incorporated in the report of the case.

The demurrers were interposed upon the ground that it affirmatively appears upon the face of the complaint that the defendants, Mrs. E. S. Spires and M. A. Laird, who are the appellants here, are liable, if at all, only in the capacity of endorsers, and that the complaint fails to state a cause of action as against them, in that it is not alleged in said first cause of action that the notes referred to were presented at maturity to the makers, nor that due notice of dishonor was given to said endorsers. We think the question is' to be determined in the light of certain provisions of the Code of Civil Procedure, 1912. Section 212 is as follows:

“In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts showing such performance. In an action or defense founded upon an instrument for the payment of money, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum, which he claims.”

In conformity with the express provisions of Section 212, the complaint here sets out copies of the notes, and alleges that a specified sum upon said notes became due and payable “by the defendants to the plaintiff on the 1st day of October, 1920.” Considered in connection with the other provisions of Section 212 to the effect that it shall not be necessary to state the facts showing performance of conditions precedent in a contract, but that a general allegation of due performance shall be sufficient, in connection with the provisions of Section 169 permitting all parties to a note to be included in the same action, and in further connection with the provisions of Section 209, requiring that pleadings shall be liberally construed, we think the allegations of the first cause of action were sufficient to charge the appellants with liability as endorsers. If it be assumed that copies of the instruments set out in the first cause of action disclosed that appellants were indorsers (Shull v. Gladden, 109 S. C., 219; 95 S. E., 521; Norwood National Bank v. Piedmont Publ. Co., 106 S. C., 472; 91 S. E., 866) then the allegation that the debt evidenced by the notes became due and payable to the plaintiff by the defendants on a day certain is equivalent, under the express terms of Section 212, to a general allegation of due performance on the part of the plaintiff of all conditions precedent to the fixing of the liability of appellants, as indorsers or otherwise. The demurrers were therefore properly overruled. See Hollings v. Bankers’ Union, 63 S. C., 192; 41 S. E., 90; Hilburn v. Paysinger, 1 Bailey, 97.

The order appealed from is affirmed.

Mr. Chiee Justice Gary and Mr. Justice Fraser concur.