Summary
In Leventis v. Acciardo, 256 S.C. 437, 182 S.E.2d 726 (1971), the Supreme Court held that the trial judge properly overruled a demurrer which set up this statute and Section 32-3-10 to bar a cause of action based on an oral five year lease.
Summary of this case from Gibson v. HrysikosOpinion
19261
July 29, 1971.
Messrs. Powell, Kligman Fleming, of Columbia, for Appellant, cite: As to the Court's erring in refusing to sustain the demurrer to the amended complaint on the ground that the oral contract alleged therein comes within the scope of the Statute of Frauds, section 11-101 (4) of the 1962 S.C. Code of Laws: 193 S.C. 14, 7 S.E.2d 521; 28 S.C. 172, 5 S.E. 352; 57 S.C. 147, 35 S.E. 499; 193 S.C. 378, 8 S.E.2d 844; 159 S.C. 446, 147 S.E. 621. As to the Circuit Judge's erring in refusing to sustain the demurrer on the ground that it violated the 1962 S.C. Code of Laws, Sec. 41-52: 66 S.C. 162, 44 S.E. 571; 60 S.C. 392, 38 S.E. 596; 212 S.C. 1, 46 S.E.2d 170; 117 S.C. 214, 110 S.E. 526. As to the amended complaint not containing allegations of part performance sufficient to take the alleged contract out from under the operation of the Statute of Frauds: Sections 11-101 (4), 41-52 and 57-305 of the 1962 S.C. Code of Laws; 232 S.C. 53, 100 S.E.2d 812; 77 S.C. 205, 57 S.E. 837; 222 S.C. 313, 72 S.E.2d 531; 49 Am. Jur. Statute of Frauds, Sec. 428, p. 734; 117 S.C. 214, 110 S.E. 526. As to the Circuit Judge's erring in permitting counsel for the respondent to present on oral argument certain matters which did not appear on the face of the amended complaint: 246 S.C. 414, 143 S.E.2d 803; 243 S.C. 61, 132 S.E.2d 172; West's South Carolina Digest, Pleadings, Key No. 216 (1) and 216 (2).
Thomas E. McCutchen, Esq., Whaley, McCutchen, Blanton Richardson, of Columbia, for Respondent, cites: As to the oral contract between Appellant and Respondent as alleged in the amended complaint coming within the purview of Sec. 11-101 (4), Sec. 41-52, or Sec. 57-305 of the 1962 South Carolina Code of Laws: 247 S.C. 124, 145 S.E.2d 680; 249 S.C. 532, 155 S.E.2d 597; 239 S.C. 614, 124 S.E.2d 178; 249 S.C. 136, 153 S.E.2d 184; 249 S.C. 532, 155 S.E.2d 597; 239 S.C. 614, 124 S.E.2d 178; 27 S.C. 376, 3 S.E. 776; L. Simpson, Law of Contracts, 154 (2d ed. 1965); 37 C. J.S., Statute of Frauds, Sec. 121; 65 Md. 1, 4 A. 133; 36 Md. 336; 193 S.C. 456, 8 S.E.2d 844; 26 S.C. 80, 90, 1 S.E. 366, 372. As to sufficient allegations of part performance contained within the amended complaint which remove the oral contract from the coverage of the Statutes in question: 193 S.C. 456, 8 S.E.2d 844. As to the Circuit Judge's properly permitting the counsel for Respondent to present on oral argument certain matters and things which were not alleged in the amended complaint: 247 S.C. 124, 145 S.E.2d 597. As to the Circuit Judge in his order properly answering the issues raised by the Appellant's demurrer: 114 S.C. 339, 103 S.E. 545. As to the subject matter of an oral contract: 2 Hill, Eq. 584; 36 Md. 336; 193 S.E. 456, 8 S.E.2d 844.
July 29, 1971.
This is an appeal from an order overruling a demurrer to the complaint.
The action is against the estate of Pasquale Acciardo. The complaint alleges, in substance, that plaintiff entered into an oral contract with the deceased, under which plaintiff agreed to sign for the benefit of the deceased a five year lease for certain premises in the City of Columbia, South Carolina, at which the deceased was to operate a business and pay the entire rental. In consideration of the signing of the lease by plaintiff, the deceased agreed to purchase beer for resale in the business from a company in which plaintiff owned an interest. The deceased defaulted in the payment of the rent, resulting in plaintiff becoming liable for the balance of the rent due. The complaint seeks judgment against the estate of the deceased for the amount of plaintiff's liability under the lease.
Demurrer was interposed to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action in that the alleged contract upon which the action was based was an oral contract for the subleasing, use or occupancy of real estate in violation of Sections 11-101 (4), 41-52, 57-305 of the 1962 Code of Laws, which require such contracts to be in writing.
The lower court overruled the demurrer in a formal order, but provided that such ruling was "not to be considered as a determination of the issue as to whether or not the Statute of Frauds would be a bar upon presentation of the case on its merits." Judgment is affirmed.
Whether the alleged contract violates the Statute of Frauds, as contended by the defendant, or whether it is removed from the operation of the statute as a contract of guaranty or by virtue of part performance, as contended by plaintiff, can properly be determined only after the facts are developed on a trial of the merits.
Affirmed.
MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., Concur.