Wallace v. Lark, CASE No. 789

CASE No. 789 | S.C. | Jan 7, 1880

The opinion of the court was delivered by

McIver, A. J.

This was an action brought against the defendant as the guarantor of a note under seal, executed by one Kay Burton, in favor of Dennis Lark. The defendant, in Paragraph 2 of his answer, set up the following as a defence: “That the note complained upon was given as the purchase money of a horse to be used in the Confederate service during the late war, and that said horse was actually so used.” To this defence the plaintiff demurred and the Circuit judge sustained the demurrer, from which the defendant appeals. That the demurrer was properly sustained is manifest from the fact that there is no allegation that either the plaintiff or his assignor, the payee of the note, knew at the time the note was given the purpose for which the horse was purchased. It is true a demurrer admits every fact stated in the pleading demurred to, but here-the only facts stated are : 1. That the note was given for a horse-to be used in the Confederate service. 2. That the horse was actually so used. Neither of these facts necessarily involves the idea that the vendor knew, at the time of the sale — the time when the contract was entered into — the purpose for which the horse was bought. The case, therefore, cannot even be brought within the rule established by the cases of Lightfoot v. Tenant, 1 B. & P. 551; Langton v. Hughes, 1 M. & S. 593; Cannan v. Bryce, 3 B. & A. 179 ; De Groot v. Van Duzer 20 Wend. 330, that. mere knowledge on the part of the vendor that the purchaser intends to use the article purchased for an illegal or immoral purpose will be sufficient to defeat an action for the purchase money.

We are not disposed, however, to rest the case here, but are-rather inclined to adopt the rule laid down by Lord Mansfield in Hodgson v. Temple, 5 Taunt. 181, that mere knowledge of the vendor that the purchaser intends to make an illegal or immoral use of the article purchased is not sufficient to defeat an action for the purchase money. There must be something more; something to show that the vendor was to participate in the illegal transaction, or that his intention in making the sale was not the-ordinary purpose to dispose of his goods to the best advantage, but to aid or promote the illegal or immoral purpose for which the article was bought. The rule thus laid down is sustained by the following cases: Michael v. Bacon, 49 Mo. 474; S. C., 8 Am. R. 138 ; Hubbard v. Moore, 24 La. An. 591 ; S. C., 13 Am. R. 128; Mahood v. Tealza, 26 La. An. 108 ; S. C., 21 Am. R. 546; Tedder v. Odom, 2 Heisk. 68; S. C., 5 Am. R. 25. In the last-mentioned case the question now before this court was before the Supreme Court of Tennessee,.with the additional fact that there the vendor knew at the time the note was given, the purpose for which the horse was bought, and it was held that bare knowledge on the part of. the vendor that the purchaser intended to make an illegal use of the horse did not violate the note given for the purchase money. This case cannot be brought within the rule laid down, quite reluctantly as it would seem, in the case of Converse v. Evins, 5 S. C. 52; following the case of Hanauer v. Woodruff, 15 Wall. 439; for in those cases the consideration of the notes sued upon were bonds which were adjudged to be nullities, and as never having had any legal existence as property and of which no lawful use could be made, while here the consideration of the note sued upon is a horse which was always property of which a lawful use could be made. Nor does it come within the doctrine laid down in the case of Hanauer v. Doane, 12 Wall. 342, for there the action was upon a note given for supplies and commissary stores sold to a recognized supply contractor — in fact it was practically a sale to the Confederate government — while here the sale was to a private individual.

The defendant also demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and the Circuit judge having sustained this demurrer, the plaintiff also appeals. In this we think there was error. It is very true that the fact that the defendant guaranteed the payment of the note is not alleged with that technical accuracy which would be expected from an artistic pleader, but still we think it sufficiently appears from the allegations of the complaint that the defendant was sued as guarantor of the note, and that he, therefore, was not taken by surprise. The code requires that “ in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties,” (Section 182,) and that “the court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.” Section 199. Construing the pleadings in this case in such a spirit, we are unable to see how the error or defect complained of here — purely technical in its character — could possibly affect the substantial rights of the defendant. See, also, Mason v. Carter, 8 S. C. 103.

The judgment of the Circuit Court, in so far as it sustains the demurrer to Paragraph 2 of the answer, is affirmed, but in so far as it sustains the demurrer to the complaint, it is reversed.

Judgment modified.

Willard, C. J., concurred.