Coral Gables, Inc. v. Palmetto Brick Co.

• Decision Date: 10 May 1937
• Docket Number: 14480.
• Parties: CORAL GABLES, Inc., v. PALMETTO BRICK CO. et al.
• Court: South Carolina Supreme Court

191 S.E. 337

183 S.C. 478

CORAL GABLES, Inc., v. PALMETTO BRICK CO. et al.

No. 14480.

Supreme Court of South Carolina

May 10, 1937

Appeal from Common Pleas Circuit Court of Chesterfield County; E. C Dennis, Judge.

Action on a promissory note by Coral Gables, Incorporated, against the Palmetto Brick Company and another. From an order overruling plaintiff's motion to amend its complaint plaintiff appeals.

Affirmed.

Leppard & Leppard, of Chesterfield, for appellant.

Stevenson & Lindsay, of Bennettsville, L. C. Wannamaker, of Cheraw, and M. C. Woods, of Marion, for respondents.

FISHBURNE Justice.

This is an appeal from an order of his honor, Judge E. C. Dennis overruling a motion made by the appellant to amend its complaint.

In February, 1931, the plaintiff brought an action against the defendants, in which both were charged as joint makers and jointly liable on a certain promissory note given to the plaintiff, bearing date December 2, 1925, and judgment was demanded against both defendants. Although it appears that the complaint was amended several times, as of course, and by order of the court, prior to the controversy now before us it is referred to in the record as the first amended complaint, and we adopt that designation in our discussion.

In this complaint, omitting formal allegations, it is alleged, in paragraph 4, that "the defendants" executed and delivered the note; and, in paragraph 9, that "there is now due and owing to the plaintiff, by the said defendants, upon the said debt declared upon in this action, the sum of Eight Thousand and Four Hundred Thirty Seven and 50/100 ($8,437.50) Dollars, with interest." In paragraph 4, the note itself is set forth, and is in part as follows:

"No. ------

$8,437.50

Coral Gables, Fla., Sept. 2, 1925

In 12 consecutive quarterly payments after date the first 11 payments becoming due December 2, 1925, for value received, I promise to pay to the order of Coral Gables Corporation-Eighty Four Hundred Thirty Seven and 50-100 Dollars, at the office of Coral Gables Corporation, Coral Gables, Florida, with interest thereon at the rate of 7% per annum from date until fully paid."

This note was signed, "Palmetto Brick Company, By M. C. Thomason."

It is obvious from the purport of the complaint that although the ancillary administrator is included in the term, "the defendants," as a maker of the note, it is only being charged in its representative capacity as administrator of Thomason's estate.

In its proposed second amended complaint, in a first cause of action, the plaintiff attempts to set out the identical cause of action stated in its first amended complaint, but demands judgment against the defendant Palmetto Brick Company alone. In the second cause of action alleged therein, after adopting the cause set forth in the first cause of action as though realleged, it seeks to set up a cause of action against the ancillary administrator of Thomason's estate, upon the alleged fraud and deceit of Thomason, wherein it is charged that at the time he signed the note he made false and fraudulent representations to the effect that he was authorized to make and deliver the said note for and in the name of the Palmetto Brick Company, to the plaintiff's damage in an amount of approximately $20,000.

In the order overruling the motion to amend, it was held that no cause of action against the ancillary administrator was stated in the first amended complaint, and therefore there was nothing upon which to amend, and further that the statute of limitations had run against the note when the motion to amend was made. Consequently, it was held that the amendment could not be allowed, since it would set up a cause of action against the ancillary administrator where none existed before by virtue of such prior failure to state one, and where no right of action existed because of the bar of the statute of limitations.

The circuit judge further held that if it be conceded that a cause of action is stated against the ancillary administrator in the first complaint, the proposed amendment as set forth in the second cause of action would set up an entirely new cause of action against it, which cannot be done, after the statute of limitations has run.

The exceptions challenge the correctness of these rulings.

Does the first amended complaint allege a cause of action against the ancillary administrator of the estate of M. C. Thomason, deceased?

Mr. Pomeroy says: "The true doctrine to be gathered from all the cases is, that if the substantive facts which constitute a cause of action are stated in a complaint, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these is imperfect, incomplete and defective, such insufficiency pertaining, however, to the form rather than the substance, the proper mode of construction 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 certain by amendments." Pom.Rem. § 549.

But, it is also generally held that if the averments are so defective, if the omission of material facts is so great, that even under the rule of a liberal construction, no cause of action is stated, it is not a mere case of insufficiency, but one of complete failure, and, in such case as we understand it, the proper remedy is by demurrer, and subject, in practically all cases, to the right of amendment.

The respondent, however, did not adopt either one of these procedural steps. No motion was made to make the allegations of the complaint more definite and certain by amendment, nor was a demurrer interposed. The issue presented, nevertheless, is substantially the same in its legal aspects as though a demurrer had been interposed.

The first amended complaint indubitably shows on its face that the note is the obligation of the Palmetto Brick Company alone; it is signed "Palmetto Brick Company, by M. C. Thomason." True, it is alleged, in paragraph 4, that "the defendants" executed the note and in paragraph 9 that "the defendants" owe the debt, but these statements, in so far as M. C. Thomason is concerned, are completely demolished by the note itself.

A demurrer to a complaint cannot be sustained if any portion of it, or if to any extent, it presents facts sufficient to constitute a cause of action, or if facts for that purpose can be fairly gathered from it, however inartificially it may have been drawn, or however uncertain, defective, or imperfect may be its statements. Nor will a demurrer be sustained for mere inconsistency, indefiniteness, or repugnancy, if some fact or facts are averred positively, and the indefiniteness, inconsistency, or repugnancy are not such as to render the averment meaningless. It is likewise well established that in passing upon repugnancy, the pleading must be considered as a whole. Repugnancy is ordinarily not a ground for demurrer when the second allegation is merely superfluous and redundant, and in that case the latter may be stricken out or disregarded, and will not vitiate the pleading, but it is otherwise where the pleading is so inconsistent in itself as to destroy the meaning. Gould, Pl. § 173. The objection here goes to the substance and not to the form merely.

We are constrained to agree with the circuit judge that no cause of action is stated against the ancillary administrator in the first amended complaint. It does not necessarily follow, however, that the complaint would not be amendable.

Would the proposed amendment set forth in the second cause of action, wherein fraud is charged against Thomason's estate, constitute an entirely new cause of action against the ancillary administrator. And if so, is it permissible, because of the fact that the statute of limitations has run against the note? It is argued by the appellant that the cause of action stated in the second amended complaint against the ancillary administrator is in substance the same as that stated in the first amended complaint, and therefore it relates back to the commencement of the action and is not barred by the statute of limitations.

We think there can be no doubt about the proposition that the proposed amendment would set up a wholly new cause of action against Thomason's estate for his alleged false and fraudulent conduct, but under our decisions, this now appears to be allowable. It was held in Taylor v. Atlantic Coast Line Railroad Company, 81 S.C. 574, 62 S.E. 1113, 1114:

"Under this section [194] the power of the court to allow amendment, 'by correcting a mistake in the name of a party or a mistake in any other respect,' is unlimited, except by the obligation imposed by the statute on the court to see that the amendment is in furtherance of justice, and that such terms are imposed as may be just. This power is conditioned on proof of a bona fide mistake in setting forth the plaintiff's rights and the defendant's invasion of them. Unless the amendment proposed relates to the same transaction or the same subject as the original complaint, then it is manifest the plaintiff cannot claim to have made a mistake in the matter to which his pleading relates. When, however, the plaintiff makes the mistake of supposing one of his rights has been invaded by the defendant in one transaction, or a series of transactions relating to the same subject, and discovers another and different right was in fact invaded, it is

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