Cohrs v. Fraser

• Decision Date: 30 April 1874
• Citation: 5 S.C. 351
• Parties: COHRS v. FRASER.
• Court: South Carolina Supreme Court

5 S.C. 351

COHRS

v.FRASER.

Supreme Court of South Carolina.

April, 1874.

In an action against one charged as a warehouseman, to recover the value of goods deposited for safe keeping, the answer set up as defenses: (1) A denial of the alleged bailment; (2) an allegation that the goods were destroyed by irresistible force, and without the fault of defendant; and (3) a plea of the Statute of Limitations: Held, That the Statute of Limitations was properly pleaded, and could not be stricken from the answer on the ground of inconsistency.

An answer under the Code may set forth as many legal defenses as were allowable under the former practice.

A motion to strike out a defense as inconsistent with other defenses alleged in the answer should be made on notice and before trial, and the practice prescribed by the 21st Rule of the Circuit Courts might well be followed in such cases.

Where goods held for safe-keeping are destroyed the Statute of Limitations begins to run from the time of the loss, or, at the latest, from the time the owner has notice of the loss, and not from the time of demand.

BEFORE GRAHAM, J., AT CHARLESTON, MARCH TERM, 1873.

This was an action by Charles H. Cohrs and H. R. Banks against John Fraser & Co. to recover the value of 1,152 bales of cotton held by the defendants for safe keeping, as alleged by plaintiffs.

The first seven paragraphs of the complaint alleged that Crane & Cadow became owners of the cotton in question in June, 1862; that it was then, or soon afterwards, deposited with Frank Hampton, at his plantation, called Woodlawn, in Richland County, near Columbia, under an agreement that, in consideration of a certain amount or rate of storage to be paid, he would store and safely keep the said cotton in certain warehouses until called for, and then, on request, deliver the same safely to the owners; and that Frank Hampton died in May, 1863. The eighth paragraph alleged that on the 20th October, 1863, the defendants became the owners of the said plantation, and that they thereupon became bailees of the said cotton, to the owners thereof, on the same terms that the said Frank Hampton had agreed to hold the same. Other paragraphs alleged that the plaintiffs afterwards became the owners of the said cotton, with the right to demand the same, and that, in July, 1872, they demanded the said cotton of defendants, who failed and neglected to deliver the same.

The defendants, by their answers, relied upon three principal grounds of defense, as follows: (1) They denied that they agreed, as alleged in the eighth paragraph of the complaint, to store and safely keep the said cotton until the same should be called for, and to deliver the same safely at the request of the owner; (2) they alleged that on or about the 17th February, 1865, Woodlawn was entered by Federal forces under General Sherman; that they destroyed the said cotton, and all the buildings and other property on said plantation; and that the plaintiffs thus lost their said cotton by a superior and irresistible force, and without negligence or fault on the part of the defendants; (3) and by the eleventh paragraph they alleged that the cause of action did not accrue within four years before the commencement of the action.

When the case was called for trial the plaintiffs moved that the eleventh paragraph of the answers be stricken out, as being inconsistent with the rest of the answer. The motion was denied and plaintiffs excepted.

The plaintiffs then gave evidence tending to sustain the allegations of the complaint as above set forth, but no evidence showing that the defendants made any agreement, either with the plaintiffs or any one else, to keep the cotton, or to deliver it on request. The plaintiffs also proved that the cotton was burned on or about the 17th February, 1865, as stated in the answers, and they further proved that Cohrs, one of the plaintiffs, knew of the loss as early as June or July, 1865. The demand for the cotton was made by letter, dated the 19th July, 1872.

At the close of the plaintiff's evidence the Court granted an order, as follows: “The plaintiffs having closed their evidence in the case, and it appearing to the Court that, upon the plaintiff's evidence, the Statute of Limitations is a bar to the action, it is ordered that the plaintiffs be non-suited.”

The plaintiffs appealed, and now moved this Court to set aside the order for non-suit, and also renewed their motion to strike out the eleventh paragraph of the answers.

McCrady & Son, with whom were Campbell & Simonton, for appellants.

Magrath & Lowndes, with whom was Memminger, contra.

The opinion of the Court was delivered by

MOSES, C. J.

The appellants seek to reverse the judgment of the Court below: First, in refusing his motion to strike out the 11th paragraph of the several answers of the respondents, as inconsistent with the defense set up therein; and, second, in ordering a non-suit, which was granted by reason of the matters of defense contained in the said paragraph. If the first motion should be granted, it will necessarily follow that the second must prevail.

While the forms of pleading heretofore existing in this State, which were those which obtained at common law, have been abolished, “and the rules by which the sufficiency of the pleadings is to be determined are those prescribed by the Code of Procedure,” yet we may be permitted to look to the principles on which the science of pleading is founded to ascertain “the rules” which must regulate an answer under the Code, where it is sought, by more than one matter of defense, to defeat the complaint. Under the Statutes of Ann, C. 16, Sections 4 and 5, the defendant might, with leave of the Court, “plead as many pleas as he may think necessary.” The argument of the appellants is, that the defenses made by the answers are contradictory and inconsistent. But no rule of pleading can be shown which requires that matters set up by way of defense shall be consistent with each other. On the contrary, separate defenses which cannot be reconciled may be preferred by separate pleas, for if either plea is sufficient to bar the cause of action, the plaintiff must fail, and it makes no difference whether it is to the alleged contract or trespass, or to the remedy. “The defendant may, in different pleas, plead as many different grounds of defense as may be thought necessary, though they may appear to be contradictory or inconsistent, as in trespass not guilty, a justification, and accord and satisfaction.”-1 Chit. on Plead., 542; Com. Dig. Pleader, E. 2. It cannot be questioned that one may plead “ non assumpsit” and the Statute of Limitations, and yet these are plainly inconsistent, for the first denies that the defendant ever did assume, while the second implies an assumpsit at the same time, but not within the period limited by the statute.

The Code was not intended to restrict the mode in which a party called to answer a complaint should make his defense. On the contrary, it has rather enlarged his opportunity for setting up the various matters on which he may rely to bar the recovery sought against him. By Section 173 “the defendant may set forth by answer as many defenses and counter claims as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both.” In Hollenbach vs. Claw, 9 How. Pr. R., 289, it was held that a defendant was not required to admit allegations in the complaint which he might otherwise deny, simply to be allowed to set up affirmative matters of defense. He can deny the alleged assault and battery and false imprisonment, and set up a justification.- Ib. And he can deny speaking slanderous words charged in the complaint, and then allege that the words were spoken under such circumstances (describing them) as show that they were not slanderous.- Ib. Lansing vs. Parker, 9...