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Fowler v. Mumford

Superior Court of Delaware, Sussex County

January 22, 1954

FOWLER et al.
v.
MUMFORD.

Action for breach of a written contract wherein the vendors moved to strike defenses in the answer on the ground that they were insufficient. The Superior Court, Sussex County, Herrmann, J., held that the defense that the complaint failed to state a claim upon which relief could be granted was sufficient to withstand motion to strike the defense.

Motion to strike denied.

Page 536

[48 Del. 283] Daniel J. Layton, Georgetown, for plaintiffs.

Everett F. Warrington, Georgetown, and Robert W. Tunnell, of Tunnell & Tunnell, Georgetown, for defendant.

[48 Del. 284] HERRMANN, Judge.

This is an action for breach of a written contract under the provisions of which, according to the averments of the complaint, the defendant entered into an unqualified agreement to sell and convey certain parcels of land to the plaintiffs. Pursuant to Civil Rule 12(f)[1], the plaintiffs move to strike defenses identified in the answer as First, Fourth, Fifth, Sixth, Seventh and Eighth, on the ground that those defenses are insufficient.

The First Defense asserts that the complaint fails to state a claim upon which relief can be granted. This is always a sufficient defense. See Appendix to Civil Rules, Form 20; Civil Rules 12(b) and 12(h). If it is pressed by the defendant at or before trial, or if the plaintiffs bring it on for decision, this defense may be found to be without basis. It may not, however, be stricken as an insufficient defense nor should its validity be determined upon a motion to strike.

By his Fourth, Fifth, Sixth and Eighth Defenses, the defendant asserts, inter alia, that the contract was made without consideration and that the written contract is not the whole agreement between the parties; that, at the time of the execution of the contract, the plaintiffs knew that the defendant did not own the land and that the execution and performance of the contract were conditioned upon acquisition of title by the defendant alone; that title to the land has vested in the defendant and his wife and it has never vested in the defendant alone and that, therefore, the condition to the execution and performance of the contract has not occurred; that as an inducement to the defendant, the plaintiffs agreed to assist the defendant in acquiring [48 Del. 285] title and that the plaintiffs violated this agreement; that the sole consideration to flow to the defendant for the execution of the contract was the plaintiffs' promise to refrain from competing with the defendant for the purchase of the lands; that the plaintiffs violated this agreement and that there was a resultant failure of consideration.

The plaintiffs rely upon two principal grounds in support of their motion to strike these defenses.

First, the plaintiffs contend that the parol evidence rule would bar the proof of practically all of the facts thus alleged and that, therefore, these defenses should be stricken as being insufficient. This is not the office of a motion to strike an insufficient defense under Civil Rule 12(f). A defense is insufficient and subject to being

Page 537

stricken under this Rule where it is not a valid defense or where it is not germane to the issues in the case or where it is not responsive to the claim to which it is interposed. See 5 Cyc. of Fed.Proc. (3d Ed.) § 15.376. But the rules of evidence are not to be applied at this stage of the case. If a defense is sufficient as stated, it will withstand a motion to strike because the facts alleged will be assumed to be admitted for the purpose of the motion. 1 Barron and Holtzoff, Fed.Pract. & Proc., § 369. The plaintiffs do not contend that certain of the facts alleged would not constitute a defense if proved by admissible evidence. They say merely that the defendant will not be able to prove those facts because rules of evidence will prohibit such proof. That question must await the rulings of the trial judge. It is agreed by the authorities that a motion to strike an answer under Civil Rule 12(f) will be denied if the answer presents a bona fide issue of fact which should be heard on the merits. See 2 Moore's Fed.Pract. (2d Ed.) p. 2320; 5 Cyc. of Fed.Proc. (3d Ed.) § 15.377; 1 Barron and Holtzoff, Fed.Pract. & Proc., § 369.

Secondly, the plaintiffs contend that, in this action for breach of a contract to sell lands, it is no defense to say that the defendant did not own the property at the time of the execution [48 Del. 286] of the contract or that title vested in the defendant and his wife rather than in the defendant alone. They cite Stabler v. Ramsay, Del.,89 A.2d 544 and they argue that the allegations of title in another are not sufficient defenses and should be stricken. I am of the opinion that the question thus presented should not be decided at this stage of the case because the defendant seems to be asserting that performance of the contract has been expressly conditioned upon acquisition of title by the defendant alone. Thus, the application of the parol evidence rule may be again involved and an issue of ...


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