Childers v. Earle

• Decision Date: 23 April 1879
• Docket Number: CASE 724.
• Citation: 12 S.C. 1
• Parties: JANE CHILDERS v. VERNER & STRIBLING AND ELIZA A. EARLE.
• Court: South Carolina Supreme Court

12 S.C. 1

JANE CHILDERS v. VERNER & STRIBLING AND ELIZA A. EARLE.

CASE No. 724.

Supreme Court of South Carolina.

April 23, 1879

1. The rule that pleading must be construed strongly against the pleader, is inconsistent with Section 182 of the code of procedure.

2. Complaint alleged that plaintiff was a laborer on land leased by M. from E., and also admitted possession and ownership to be in E., and alleged further, in a separate paragraph, that defendants improperly and illegally entered the premises rented to plaintiff by M., and gathered and hauled therefrom certain specified quantities of the crop. Held , on demurrer, to state facts sufficient to constitute a cause of action.

MCIVER A. J., dissenting .

Before MACKEY, J., at Oconee, March, 1878.

The complaint is as follows:

The plaintiff, complaining against the defendants, John D. Verner and William J. Stribling, doing business as merchants in the towns of Walhalla and Westminster, in the state and county aforesaid, under the name, firm, and style of Verner &amp Stribling, and Eliza A. Earle, shows to the court as follows:

1. That on or about the day of , 1876, one John C. McFall and James W. Earle, agent of Eliza A. Earle, entered into a written contract of lease or rent, by which McFall obliged himself to cultivate a portion of Mrs. Earle's farm, situate in the county and state aforesaid, and lying on Changer creek waters of Tugaloo river; and thereupon entered upon the execution of his said contract.

2. That on the 10th day of February, 1876, the said John C. McFall entered into a written contract with plaintiff and her family to work the land leased or rented from Mr. Earle, in words and figures following, to wit:

" An agreement between John C. McFall, on the one part, and Jane Childers on the other: I, John C. McFall, agree to give the said Jane Childers one-third of every part of the crop they may raise, after the rent is paid. The said McFall agrees to be at all expense for mule, tools, & c. Also, if necessary, to advance some for the said Jane Childers. Jane agrees to do the said McFall's cooking and washing extra of wages. The said Jane Childers agrees to pay for one-third of fertilizers used in making the crop. Witness our hands and seals, this February 10th, 1876.

" JOHN C. MCFALL, [L. S.]

" JANE her x mark. CHILDERS, [L. S.]

" Witness: J. W. EARLE."

3. That on the day of June, 1876, McFall abandoned the place he had leased or rented, and thereby imposed the burden of working the crop on plaintiff and her family.

4. That on the day of , 1876, James W. Earle, as agent of Eliza A. Earle, after the abandonment of the crop by McFall, agreed verbally to and with plaintiff to give her, in addition to her contract with McFall, a sufficiency of the crop to make her share of the same one-half of the whole amount grown on the said premises. And plaintiff alleges that as a laborer she has a prior lien on the entire crop made on the land rented by McFall to secure her one-half thereof, as provided by the " Revised Statutes of the State of South Carolina," page 491.

5. That on the day of 1876, defendants, Verner & Stribling, secured from McFall a lien for supplies to make his crop, and advanced to him more or less thereon-the amount and particulars of which are unknown to plaintiff.

6. That on the 10th day of October, A. D. 1876, defendants, Verner & Stribling, improperly and illegally entered the premises rented to her by McFall, gathered and hauled therefrom about one hundred bushels of corn, worth $75, and two thousand pounds of seed cotton, worth $60, making altogether $125; and to her damage beside the sum of $300.

Wherefore, plaintiff demands judgment against Verner & Stribling for the sum of $125, with interest from the 10th day of October, A. D. 1876, the value of the crop illegally taken away by them; and $300 damages sustained by her in the improper and illegal removal of the crop as aforesaid, and for the costs of this action.

The defendants, Verner & Stribling, demurred, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The defendant, Earle, answered. The demurrer was sustained, and plaintiffs appealed to this court.

Messrs. McGowan & Thompson , for appellant.

Facts stated are sufficient. 8 S. C. 103; 7 S. C. 290. Having no warrant from the clerk, Verner & Stribling were mere trespassers. Gen. Stat. 539. But even with warrant, they could not seize crop of sub-tenant upon which their supplies were not expended. And if they could take crop of McFall's sub-tenant, they could not take crop of one who had no connection with McFall, but held original lease from the land-owner. It is of no concern to defendants, mere outsiders, whether plaintiff's contract was verbal, or in writing. 6 S. C. 297; 8 S. C. 68. Plaintiff, under any view, had lien for one-third of the crop.

Messrs. J. J. Norton and J. S. Verner , for respondents.

1. Having no privity of contract with plaintiff, these defendants could not be, and are not, sued in assumpsit , but are sued in tort, as we suppose trespass on real estate, the severing, taking and carrying away of the crop, showing merely the amount of actual damage sustained, the ungathered crop being part of the freehold. If so, then being merely a laborer, hired to work on the premises, she cannot maintain this action. She does not even allege possession. Chit. Pl. *170, 175.

2. Nor can she maintain trespass against us in reference to the crop, if personalty. Its ownership was in defendant, Earle. 2 Bail. 581; 1 Hill 364. Plaintiff does not even allege, and the law will not imply, that she was in possession as bailee. Stephens N. P. 2637.

3. Plaintiff has no lien. She has abandoned the McFall contract. The contract with defendant, Earle, was not in writing. 8 S. C. 63.

4. If she has a lien, her remedy is not personal against the persons who may at some time have been in possession of the crop, but on the crop itself. Bail. 237; Rev. Stat. 491.

5. Plaintiff does not allege that defendant, Earle, has not paid her, and as she asks no judgment against that defendant, it is fair to presume that she has been paid, and this view is further strengthened by the answer of Earle, alleging that plaintiff is indebted to her.

OPINION

HASKELL A. J.

The defendants, Verner & Stribling, demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the Circuit judge, and from that order the appeal is taken. The complaint is defective, but the question is whether the defect is substantial. The objection that the complaint does not state facts sufficient to constitute a cause of action like that to the jurisdiction of the court, may be taken at any time. Code , § 171; Rev. Stat. 605. The defect, therefore, must be of a kind that cannot be cured except by allegations in the answer, which, together with the complaint, may serve to make up a cause of action. It is argued that the rule is that pleadings must be construed strongly against the pleader. Such a rule is expressly forbidden by Section 182 of the code, (Rev. Stat. 608,) which directs 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."

The generally adopted rule is thus stated: " The true doctrine to be gathered from all the cases is that if the substantial facts which constitute a cause of action, are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and complete by amendment. *** Thus, if instead of alleging the issuable facts, the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or if he should aver conclusions of law in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the substance, and the mode of correction would be by a motion and not by demurrer." Pom. on Rem. 592-4.

The sixth paragraph of...