35 S.C. 127 | S.C. | 1892
The opinion of the court was delivered by
On 19th December, 1872, Thomas W. Dewey filed his complaint against the above named defendants, to which Massey alone answered, Jones having made default. In this complaint the allegations, substantially, are that in January, 1869, the defendants applied to and obtained from Bryce & Co. a largo amount of plantation supplies, for the use of the plantation known as the Landsford place, in Chester County ; that upon an examination of the account for these supplies, made on or about the 2d day of May, 1871, it was ascertained that the balance due on said account was the sum of $5,660.35, for which 'defendants, by their agent, O. B. Jones, gave their promissory 'note in writing, whereby they promised to pay the said Bryce & Co. the said sum of $5,660.35 six months after the date, thereof; that said note, before maturity, was transferred to plaintiff; that no part of said note, nor the demand evidenced thereby, nor the account for which the same was given, has ever been paid. Wherefore the plaintiff demanded judgment for the said amount, with interest from the maturity of the note, together with expenses of protest.
On the 14th of November, 1873, the plaintiff, proposing to amend his complaint, served upon defendant’s attorneys a notice of a motion to amend the complaint, a copy of the proposed amended complaint accompanying the notice. Upon this paper the attorneys for defendant made the following endorsement: “I hereby acknowledge due service of a copy of the within complaint and of the above notice, endorsed November 14th, 1873.” It does not appear, and the fact is denied by defendant, that there ever was an}7 order granting plaintiff leave to amend the complaint. The cause remained upon the docket undisposed of until the '24th of September, 1882, when a paper styled a supplemental complaint was filed, in which all the allegations contained in the proposed amended complaint were incorporated, together with the allegations that the said Dewey had departed this life intestate, and that administration of his personal estate had been committed to the plaintiff', J. Y. Bryce, and also alleging that said plaintiff had thereby becotde the owner and holder of the
Without undertaking to state all of the allegations in the amended complaint, which, as we have stated, were repeated in the supplemental complaint, it will be sufficient to state in general terms that these allegations seem designed to state as the cause of action the debt due for advances by Massey to Bryce & Co., which it was alleged was secured by a paper in the nature of a mortgage and agricultural lien (a copy of which will hereinafter be set out), and judgment was demanded, not only for the debt, but for the foreclosure of the alleged mortgage. To this alleged supplemental complaint the defendant Massey answered, raising many issues, amongst others, whether the so called supplemental complaint can properly be regarded as supplemental to the original complaint, inasmuch as it is claimed that the supplemental complaint is based upon a new cause of action, different from that stated in the original complaint, and pleading the statute of limitations to such alleged new cause of action; and also claiming that as the so-called supplemental complaint was not filed until after the expiration of more than ten years from the death of said Dewey, the lapse of such a length of time is a bar to any right to revive the original action against the defendant.
Upon these pleadings the case was presented to his honor, Judge Pressley, who granted an order on the 12th of March, 1887, referring all the issues to a referee, “all equities to be passed upon and reviewed by the court upon the coming in of the report.” Without- undertaking to state in detail the findings, either of the referee or the Circuit Judge, for which reference must be had to the report of the referee and the decree of the Circuit Judge, which should be incorporated in the report of this case, we will proceed at once to the -consideration of what we regard as the controlling questions in the case.
The paper referred to in the supplemental complaint as being in the nature of an agricultural lien and mortgage, is in the following form : “For provisions and merchandise to me furnished by J. Y. Bryce & Co., of Charlotte, N. 0., for the purpose of carrying on my own plantation in Lancaster District, and also my plantation, known as the Landsford place, by my'agent, not to exceed in value the sum of $10,000, I do hereby pledge and pawn to the said J. Y. Bryce & Co. all of my real and personal property, of every kind and description, including all the cotton and other produce raised on said plantations, and all other pro
What, then, was the purpose of the additional terms inserted by Massey ? It seems to us that the only object in adding those words was to confine Massey’s liability to such advances only as should be made for the Landsford place — “that is, to the crops raised and stock and farming implements used on the Landsford plantation.” Inasmuch as, under paper D, Massey was liable only for such advances as were made upon his orders in writing, he had it in his power to confine his agent Jones to such advances as would be necessary and proper to carry on the Lands-ford plantation, but when he was asked to sign paper E, dispensing with the necessity for his written orders, whereby his check upon his agent Jones would be lost, it was very natural that he should, before signing, insert something to serve as a substitute for the check on his agent which he was to give up, and there
The judgment of this court is, that the judgment of the Circuit Court, in so far as it conflicts with the views herein presented, be reversed, in other respects that- it be affirmed; and that the case be remanded to the Circuit Court for such further proceedings as may be necessary to carry into effect the views herein announced.