Southern Engine & Boiler Works v. Dicks

Decision Date25 August 1915
Docket Number9180.
Citation86 S.E. 18,101 S.C. 462
PartiesSOUTHERN ENGINE & BOILER WORKS v. DICKS.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Barnwell County; Thomas S. Sease, Judge.

Action by the Southern Engine & Boiler Works against W. A. Dicks upon a promissory note for machinery, wherein defendant set up breach of warranty. From a judgment for defendant, plaintiff appeals. Affirmed.

J. E. Tobin and Jas. A. Willis, both of Barnwell, for appellant.

R. C. Holman, of Barnwell, for respondent.

WATTS, J.

This is an appeal from an order of Judge Sease confirming the report of the master of Barnwell county, to whom all issues of law and fact were referred, to hear and determine the same and report to the court. The exceptions, 12 in number, allege error in finding of facts on the part of the master, concurred in by the trial judge, and errors of law in permitting amendments, and holding that it was not necessary for the defendant to plead waiver or estoppel in pais of plaintiff to raise objection that notice was not given as required by contract, and in holding that the plaintiff had waived the requirement that the notice of breach of warranty be given within 30 days, and in giving judgment for defendant against plaintiff for $150 on counterclaim.

There was a concurring finding of facts by the master and circuit judge, and it is incumbent upon the appellant to show this court that such finding was erroneous, and this appellant has failed to do.

The master had the power to allow the amendment. It was within his discretion, and could be allowed, even during the trial, when they do not so materially change the claim or defense as to result in prejudice to the adverse party, and the party resisting the motion to amend must show by affidavit or otherwise to the satisfaction of the court that he would be misled or surprised thereby to his prejudice. Koennecke v. Seaboard Air Line Railway, 101 S.C. 86, 85 S.E. 374.

As to the admission of evidence under the pleadings, the authorities cited by the master in his report sustain his findings fully. There was sufficient evidence to sustain his findings as to the counterclaim, and under the authority of Williamson Heater Co. v. Paxville School District No. 19 et al., 87 S.E. 69, such a recommendation was proper. All exceptions are overruled.

Judgment affirmed.

GARY, C.J., and HYDRICK, FRASER, and GAGE, JJ., concur.

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