Creech v. Long

• Decision Date: 24 June 1905
• Citation: 51 S.E. 614,72 S.C. 25
• Parties: CREECH v. LONG.
• Court: South Carolina Supreme Court

51 S.E. 614

72 S.C. 25

CREECH v. LONG.

Supreme Court of South Carolina

June 24, 1905

Appeal from Common Pleas Circuit Court of Barnwell County; Townsend Judge.

Action by Frank H. Creech against B. R. Long. From an order granting a temporary injunction, defendant appeals. Affirmed.

The following is the complaint:

"The complaint of the above-named plaintiff respectfully shows to the court:

First. That the defendant above named, a farmer, being engaged in the cultivation of the soil for his means of support and livelihood, as well as for that of his family applied to the plaintiff above named on or about the 23d day of February, A. D. 1904, for advances in fertilizers to assist him in the making of said crops in his business as a farmer, in said state and county, and agreed then and there that said crops so grown by him during the current year, and whereon he proposed to, and did, use the fertilizers hereinafter set forth and described, should be a security or pledge for said advances in favor of said plaintiff, and to this end defendant agreed to execute to the plaintiff such security upon said crops, together with the chattel mortgage on certain and sundry live stock hereinafter set forth and described.

Second. That the plaintiff, relying upon said agreement on said defendant's part to execute and deliver security as aforesaid upon said crops to be grown as aforesaid, agreed to advance to the defendant standard fertilizers and acids to the extent of one hundred ninety and 65/100 dollars, to be used by the defendant as aforesaid in the production of his crops for the then current year, grown and to be grown upon all that tract of land upon which the defendant resides in said county, known as the 'Holman Place,' near the town of Barnwell, which was secured to be paid to the plaintiff on or before the 15th day of October, A. D. 1904, by an agricultural or other lien or security upon said crops to be planted upon said place as aforesaid, together with a chattel mortgage or bill of sale of the defendant's stock, described as follows: one white horse mule, named Jack, about twelve years old; one white mare mule, named Beck, about ten years old; and one sorrel mare, named Julia, about seven years old.

Third. That, when the time came to haul away the fertilizers to the said place, defendant received the fertilizers and hauled the same away to the extent of one hundred and sixty-one and 00/100 dollars, upon the further promise that, as soon as he had finished hauling, that he would forthwith execute the said security upon the said crops and upon the said live stock aforesaid; but plaintiff alleges that the defendant, in derogation of his said promise and agreement, and with intent to defraud this plaintiff, thereafter failed and refused, and still fails and refuses, to execute the said security upon said crops and said live stock as aforesaid, in spite of the fact that defendant used the said fertilizers in the cultivation and making of said crops as aforesaid, enjoying the benefit of said fertilizers and the credit extended as aforesaid by the plaintiff, to plaintiff's damage as aforesaid in the sum of $161, the balance of said amount agreed to be advanced not having been taken up by the said defendant.

Fourth. That the defendant has disposed of most of his crops, and has failed and refused to pay the plaintiff any part of said advance made upon the strength of his promise and agreement as aforesaid; but defendant has still a large part of his crops in his possession, to wit, a good portion of his cotton crop, which is in merchantable bales of cotton, as well as corn fodder and other provisions, which plaintiff is informed and believes defendant intends to dispose of for the purpose of defeating the rights of this plaintiff as above stated, unless plaintiff's rights are safeguarded by the orders of this honorable court.

Fifth. That defendant is totally insolvent, and plaintiff remediless at law, and, unless the courts of equity will interfere to protect plaintiff's rights, plaintiff is without remedy, and said advances will be a total loss to this plaintiff. Wherefore plaintiff prays that the contract above stated be declared by this court to be an equitable lien by way of mortgage upon said crops and live stock aforesaid; that the defendant be restrained and enjoined from disposing of said crops by sale or otherwise until the rights of the plaintiff may be ascertained in this suit; that the said property be seized by the court and sold by the master, and the proceeds applied to the costs of this suit and the payment of this indebtedness, and for such other and further relief as to the court may seem meet and proper."

W. A. Holman, for appellant. Bates & Simms, for respondent.

GARY A. J.

This is an appeal from an order granting a temporary injunction refusing the defendant's motion to strike out certain allegations of the complaint as irrelevant, and also refusing to require the plaintiff to elect upon which cause of action he would proceed to trial.

The questions presented by the exceptions render it necessary to refer to the complaint, which will be set out in the report of the case. Briefly stated, it alleges that the plaintiff in pursuance of an agreement with the defendant, made to him advances of fertilizers during the year 1904 for the purpose of enabling him to make his crops; that the defendant "agreed then and there that said crops so grown by him during the current year, and whereon he proposed to, and did, use the fertilizers hereinafter set forth and described, should be a security or pledge for said advances in favor of said plaintiff, and to this end defendant agreed to execute to the plaintiff such security upon said crops, together with the chattel mortgage on certain and sundry live stock hereinafter set forth and described"; that the amount due for the advances of fertilizers ""was secured to be paid to the plaintiff on or before the 15th of October, 1904, by an agricultural or other lien or security upon said crops to be planted upon said place as aforesaid, together with the chattel mortgage or bill of sale of the defendant's stock" described in the complaint; that the plaintiff complied with his part of the contract, but that the defendant refused to perform his obligation thereunder. ...