57 S.C. 493 | S.C. | 1900
Lead Opinion
The opinion of the Court was delivered by
Paragraphs 1, 2, 3, 4 of the complaint allege that Mrs. A. J. French died intestate in April, 1898; that the plaintiffs were appointed her administrators in May, 1898; that defendant is a resident of Greenville County, S. C.; and that the defendant, on the 20th February, 1890, made his promissory note, whereby he obligated himself to pay to A. J. French $600, with eight per cent, interest, on or before 1st October, 1890, but that he had only paid $100 on said note on the 19th day of November, 1895. All of which allegations were admitted in the answer except the payment of the $100, on 19th November, 1895. This* last was denied, and also all other allegations, in the fifth paragraph of complaint. The answer also set up the plea of the statute of limitations. “IV. The defendant, further answering, alleges that about twenty years ago, Jesse French, sr., departed this life, leaving of full force and effect his last will and testament, wherein he willed and devised to this defendant, who is his grand-son, and who was then a minor, all his property, including money on hand at the time of his death, and also all his real estate; that the said A. J. French, deceased, plaintiff’s intestate, was the widow of the said Jesse French, sr., deceased, i't became her duty to turn over to his executors, for the defendant, all of his money; that she did not do so, but retained in her possession $1,800 of said money, and converted the same to her own use; that the executors of the estate of the said Jesse French, sr., fully administered his estate and were discharged, and never knew that
Plaintiffs replied to the counter-claim, denying all the allegations of fact set up in the answer, and also interposing the plea of the statute of limitations thereto. At the hearing before the Pión. D. A. Townsend, the plaintiffs demurred to the counter-claim of defendants; Judge Townsend sustained such demurrer, holding that, by the allegations of the answer, the conduct of Mrs. A. J. French was set up as a tort, and inasmuch as the plaintiff had sued upon a contract, such alleged counter-claim could not be set up. Furthermore, the Circuit Judge held'that if, as the defendants contended before him, the contract of Mrs. A. J. French touching the $1,800 could be construed as an implied contract whereby she, Mrs. A. J. French, became obligated to pay the said $1,800 to the defendant, yet it was barred by the statute of limitations.
From this decretal order of Judge Townsend the defendant now appeals upon the grounds, substantially, as follows: 1. Because the Circuit Judge erred in holding the allegations setting up the counter-claim to be a tort, and, therefore, denied the application of such alleged tort as a counter-claim to
It seems that the Circuit Judge has applied too harsh a construction to the allegations of fact set up in the defendant’s answer relating to the $1,800 retained by plaintiff’s intestate — Mrs. A. J. French — from the hands of the executors of her. husband’s will, and which said $1,800, under the will, belonged to the defendant. Under the second subdivision of section 171 of our Code of Procedure, the defendant was allowed to plead his said counter-claim, “in an action arising on contract, any other cause of action also arising on contract, and existing at the commencement of the action.” It seems to us that the decision in Bryce v. Parker, 11 S. C., 337, very clearly points out that a litigant may elect between an action on tort and one on contract. The Code requires no specific words claiming that such an election has been made. It is enough if it appears to be made in effect in the pleading. It has too long been held, that “whenever one person has in his hands the money of another which he ought to pay over, he is liable in this action (old action of assumpsit), although he has never seen or heard of the person who has the right. When, this fact is proved, “that he has the money, if he cannot show that he has a legal or equitable ground for retaining it, the law creates the privity and the promise.” It has been held that under the old pleadings
The Circuit Judge having erred in sustaining the demurrer to the alleged counter-claim, the action remains for trial upon its merits. I think, therefore, our judgment should be: “It is the judgment of this Court that the order of the Circuit Court appealed from be reversed, and that the action be remitted to the Circuit Court for a trial thereof upon its merits.” But I am overruled by the majority of the Court.
Dissenting Opinion
dissenting. Being unable to concur in the conclusion reached by Mr. Justice Pope in his opinion, I propose to state as briefly as practicable the grounds of my dissent, without undertaking to elaborate the argument. It is and must be conceded that if the counterclaim set up in the answer is based upon a tort, it cannot be pleaded as a counter-claim to the plaintiff’s action, which is manifestly based upon a contract. Code, sec. 171. The first inquiry, therefore, is, whether the counter-claim, which is a cross-action, is an action ex delicto, based upon tort, or an action ex contractu. The allegations upon which the counter-claim is based substantially amount to this, that the plaintiff’s intestate, at the time of her husband’s death, had in her possession the sum of $1,800, belonging to her husband, which it was her duty, upon the death of her husband, to turn over to the executors of his will; that she not only did not perform this duty, but on the contrary she retained the possession of the said sum of money and converted the same to
It is contended, however, by the appellant that his counterclaim is protected from the bar of the statute of limitations by the provisions contained in subdiv. 6, of sec. 112, of the Code, which reads as follows: “Any action for relief on the
It seems to me that there was no error on the part of the Circuit Judge in sustaining the demurrer upon either of the grounds upon which he bases his conclusion, and, therefore, his judgment should be affirmed, and as the majority of this Court agree that the judgment of the Circuit Court should be affirmed,
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.
Concurrence Opinion
I concur in the opinion of the Chief Justice.
Concurrence in Part
I dissent, and concur in that part of Chief Justice M elver’s dissenting opinion relating to the statute of limitations.