12 S.C. 576 | S.C. | 1880
The opinion of the court was delivered by
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
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
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.
Judgment modified.