Opinion
13545
December 29, 1932.
Before TOWNSEND, J., Sumter, August, 1931. Appeal dismissed and judgment affirmed.
Action by Mrs. G.R. Cook against the Hartford Fire Insurance Company. From a judgment on a directed verdict for defendant, plaintiff appeals.
Mr. L.D. Jennings, for appellant, cites: Payment of less than whole amount not satisfaction: 61 S.C. 448; 85 S.C. 419; 83 S.C. 80. Fraud defined: 108 S.E., 189; 12 R.C. L., 229; 115 S.E., 634; 117 S.C. 137; 108 S.E., 189.
Messrs. Jos. L. Nettles and S.K. Nash, for respondent, cite: Occupancy of dwelling defined: 68 A.S.R., 323. As to Tender: 166 S.C. 203; 164 S.E., 632; 142 S.C. 102; 141 S.E., 307; 166 S.C. 467; 165 S.E., 203.
December 29, 1932. The opinion of the Court was delivered by
Appellant was the owner of a dwelling house, on a farm in Sumter County, S.C. which house was insured in the defendant company for the sum of $600.00. A part of the farm land was rented, but the house was unoccupied by any tenant. Appellant alleges that she had arranged with the person who rented her land to have one of his sons sleep in the vacant house at night.
The house was burned. When the adjuster of the insurance company went to the scene of the fire, he testifies that he discovered that the house had not been occupied for several months. A provision of the policy was that the company should not be liable for loss or damage occurring while the building was vacant or unoccupied beyond a period of ten days. An issue arose between the adjuster and appellant over this matter of the vacancy of the house, which was settled by the payment by the company to the appellant and the acceptance by her of the sum of $400.00, in settlement of the loss. This sum the appellant retains.
Thereafter the appellant brought this action to recover $200.00, the balance of the amount named in the policy of insurance and punitive damages alleging that the adjuster defrauded her and induced her to accept the $400.00 by telling her that, if she did not accept that amount, she would not get anything. She asks judgment for actual and punitive damages in the sum of $2,950.00.
When the evidence was all in, Judge Townsend directed a verdict for defendant on the ground that there was no evidence of actionable fraud on the part of defendant; that plaintiff had not returned nor offered to return the $400.00 which plaintiff had accepted in settlement of the loss under the policy.
It is elementary law that, if one would repudiate a contract, he must return or offer to return the consideration which he accepted in making the contract. This has not been done.
We find no error. The appeal is dismissed, and the judgment is affirmed.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE CARTER and MESSRS. M.M. MANN and G. DEWEY OXNER, CIRCUIT JUDGES, concur.