113 S.E. 493 | S.C. | 1922
Lead Opinion
September 1, 1922. The opinion of the Court was delivered by In order to understand the issues involved, it will be necessary to set out the pleadings in the report of the case.
The first question to be determined is whether there was error on the part of his Honor, the presiding Judge, in refusing the motion for an order of reference. All the issues were submitted to the jury, which rendered a verdict in favor of the plaintiff, against the defendant Noah Lewis alone, for the sum of $99.44, and the plaintiff appealed.
The following authorities show that there was error in refusing the order of reference: Rainwater v. Bank ofCheraw,
Having reached this conclusion, the other questions become merely academic.
Reversed.
MR. JUSTICE FRASER, concurs.
MR. JUSTICE MARION, concurs in result.
Concurrence Opinion
Action upon an account for goods sold by the plaintiff to the defendant Lewis, a share cropper upon the land of the defendant Jarrett. The claim against Jarrett is based upon an alleged original understanding on his part to stand good for the advances made to Lewis at the time the plaintiff agreed to make them in the cultivation of the crop. The complaint also alleges an agreement on the part of Jarrett to release all of his interest in Lewis' crop except what was necessary to pay for the fertilizer, this release to be signed by Jarrett upon the taking of a mortgage by the plaintiff upon Lewis' crop, but as a matter of fact was never signed by Jarrett after the mortgage was taken. The testimony of the plaintiff does not precisely sustain this contention; she says that Jarrett agreed to release Lewis' interest in the crop. *344
It appears that the value of the cotton alone raised by Lewis, exclusive of cotton seed and other crops, was $627.52 after paying for the guano, all of which was applied by Jarrett to claims held by him against Lewis. A small part of the crop was seized by the Sheriff at the instance of the plaintiff, and the proceeds, we assume, applied to the plaintiff's claim. No details of this seizure are contained in the record for appeal.
Assuming the facts to have been as testified to by the plaintiff, she had two remedies, either or both of which she had the right to pursue: (1) An action against earrett upon the original undertaking to stand good for Lewis' account; (2) an action against Jarrett upon his agreement to release Lewis' interest in the crop for the protection of the plaintiff and his appropriation of that interest in violation of this agreement.
If at the time the plaintiff agreed to make the advances to Lewis, and in and in consideration thereof, Jarrett agreed to stand good for them, this would constitute an original undertaking upon which Jarrett would be liable.
Or if at that time and in consideration thereof Jarrett agreed that Lewis might mortgage his interest to the plaintiff as security for the advances, and that he would release any claim upon Lewis' interest except the fertilizers, he would be estopped from disputing the right of the plaintiff to a lien upon Lewis' interest, notwithstanding the fact that Lewis was a share cropper and under normal conditions incapable of mortgaging such interest, and an appropriation by Jarrett of Lewis' interest would make him pro tanto responsible to the plaintiff. But it appears from the complaint that the plaintiff did not proceed upon the latter theory. The case was docketed, we assume, on Calendar 1, and was called for trial before a jury. No motion was made for a reference upon any equitable issues *345 involved in the case, if it should be said that there were any; but the case was tried as one at law, the contested issue being whether or not Jarrett had stood for Lewis' account, which issue was explicitly stated by the trial Judge, and no objection interposed by the plaintiff, with the exception that counsel for plaintiff suggested that the action was both upon the account and for the foreclosure of the chattel mortgage, a proposition that finds no support in the allegations of the complaint.
The jury rendered a verdict in favor of the plaintiff against Lewis alone for $99.44, no mention apparently being made of the defendant Jarrett. The plaintiff made a motion for a new trial upon several grounds, only one of which may be noticed. The defendant, Jarrett, admitted that he had agreed to stand good for the first order of goods furnished to Lewis, which amounted to $8.00. The plaintiff was clearly entitled to a judgment against Jarrett for that amount. The Court doubtless in its discretion would have the power to grant a new trial nisi in this case, refusing it upon condition that defendant, Jarrett, consented to the entry of a judgment against him for that amount. 29 Cyc., 1019. But the verdict shows such an utter disregard of the facts of the case that, in our opinion, the interests of justice demand a reversal of the entire judgment.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial, with leave to the plaintiff to amend the complaint as she may be advised.
