8335 | S.C. | Oct 8, 1912
October 8, 1912. The opinion of the Court was delivered by In this appeal, in an action of claim and delivery, from a judgment against the defendant, the exceptions assign errors in these particulars: First, in refusing to allow an amendment to the answer; second, in excluding testimony tending to show that the plaintiff had agreed to repair the store for the rent of which the mortgage was given; third, in charging that the plaintiff had demanded possession of the property; and fourth, in refusing a new trial on the ground that the verdict was not in proper form.
The foundation of the action was a mortgage on a stock of goods executed by the defendant to secure several notes given to the plaintiff for the rent of a storehouse. The defense set up in the original answer was that the store was in a dilapidated condition, that the notes were given for *571 rent in advance, that the plaintiff had promised when they were given to repair the store and had refused to do so, and that defendant's goods were so injured by leaks in the roof that he was forced to move his goods and carry on his business in another store. The rent contract was made on September 7, 1906, for the rent of the store from September 1, 1906, to September 1, 1907, for $300, and contains no agreement as to repairs. The mortgage was not executed until January 16, 1907. When the cause was called for trial the defendant's counsel made a motion to amend by alleging that the defendant signed the mortgage, which was not read to him, under the representation by the plaintiff that it was a paper giving him the right to move, and under the duress of threats of bodily harm at the hands of the plaintiff. As an excuse for not putting this defense in the original answer, counsel for defendant stated that defendant was a foreigner speaking English so imperfectly that he had not understood him as to the allegations of the proposed amendment until the morning of the trial. The contention that there was abuse of discretion in not allowing the amendment cannot be sustained. The amendment proposed would have introduced on the eve of the trial an entirely new issue. The defendant had had nearly twelve months after the commencement of the action to acquaint counsel with his defenses; and there was good reason for the Court to hold that if he had used due diligence and care the defense would have been set up before the call of the case. As there was no error in refusing the amendment, it follows the testimony offered to support it was properly excluded.
As to the second point, it is true, as defendant contends, that a lease silent on the subject of repairs implies no obligation on the part of either lessor or lessee to repair; and as the written lease in this case made no reference to repairs, it was no obstable to setting up and proving a distinct and separate agreement by Reardon, the *572
plaintiff, to put the house in repair. Williams v. Salmond,
There is no foundation for the third assignment of error, for the admission of defendant's counsel in the course of the charge could not be construed as less than an admission of a demand for the possession of the property.
The verdict was in this form: "We find for the plaintiff the recovery of the possession of the goods or the sum of two hundred dollars." This sufficiently identified the property as there were no goods referred to in the pleadings or the evidence except the stock of goods covered by the mortgage. Bossard v. Vaughn,
Affirmed.