Cudd v. Moore

• Decision Date: 05 November 1923
• Docket Number: 11323.
• Citation: 119 S.E. 837,126 S.C. 266
• Parties: CUDD v. MOORE ET AL.
• Court: South Carolina Supreme Court

119 S.E. 837

126 S.C. 266

CUDD v. MOORE ET AL.

No. 11323.

Supreme Court of South Carolina

November 5, 1923

Appeal from Common Pleas Circuit Court of Spartanburg County; W. S Hall, Special Judge.

Action by John T. Cudd against R. H. Moore and J. H. Lyles. Judgment for defendants, and plaintiff appeals. A new trial ordered as to defendant Moore, and appeal dismissed as to defendant Lyles.

The complaint was as follows:

"Plaintiff alleges:

(1) That on the ______ day of ______, 1921, the plaintiff, by and with the consent of the defendant J. H. Lyles, placed in a warehouse of the Mayo Supply Company, under the care and direction of the defendant J. H. Lyles, seed out of seven bales of cotton amounting to two and 14/20 (2 14/20), of the value of one hundred and eight ($108.00) dollars, leaving the same in the care and custody of the said J. H. Lyles until this plaintiff decided whether he would exchange the seed for meal and fertilizer or sell them.

(2) Thereafter the defendant John H. Lyles, it is alleged on information and belief, sold said seed to his codefendant R H. Moore, and the said R. H. Moore carried said seed away unbeknowing to this plaintiff, and disposed of the same placing them beyond the reach of this plaintiff.

(3) That the defendant R. H. Moore well knew that plaintiff had 5,400 pounds of cotton seed in said warehouse, by reason of helping weigh them and being present when they were placed therein; that said plaintiff has demanded payment for said seed, but the defendants have neglected, failed, and refused to pay the same.

(4) That the conversion of said seed by the defendants was willful, wanton, and in utter disregard of the rights of this plaintiff, who had placed said seed there for storage and was to determine later whether or not to sell the seed or to exchange the same for meal, all of which was well known to both defendants.

(5) That by reason of the willful and wanton conversion of said seed by the defendants, the plaintiff has suffered damage, both actual and punitive, in the sum of five hundred ($500.00) dollars.

Wherefore, plaintiff prays judgment against the defendants for the sum of five hundred ($500.00) dollars his damages, both actual and punitive, and for costs."

The answer of the defendant R. H. Moore, respondent, was as follows:

"The defendant R. H. Moore answering the complaint herein:

(1) Denies each and every allegation of the complaint not hereinafter admitted or explained.

(2) This defendant alleges that in 1921 the plaintiff delivered to the Mayo Supply Company certain cotton seed, of about the amount and value as alleged in the complaint, for exchange for meal and hulls, and that said meal and hulls were in the possession of the Mayo Supply Company, for the plaintiff, from the time of the delivery of the seed until said company was declared bankrupt about the ______ day of December, 1921, when the property was delivered to the trustee in bankruptcy.

(3) This defendant further alleges that Mayo Supply Company sold and delivered to this defendant certain cotton seed of the value of about $2,700.00, for which he paid said company but none of said seed was the property of the plaintiff.

(4) This defendant further alleges that the plaintiff filed with Hon. H. E. De Pass, referee in bankruptcy, his claim against Mayo Supply Company and J. H. Lyles for the value of the seed herein set out, and said claim was allowed plaintiff on the basis of $1.75 per one hundred pounds.

Wherefore, this defendant prays that the complaint as to him be dismissed with costs."

Appellant's exceptions follow:

"(1) Because the court erred in sustaining the respondent's objection to the following question: 'To whom did you look for the seed?'--the error being that the answer would have been: 'To the respondent R. H Moore.' This would have shown that although he had gone to the referee in bankruptcy to inquire about his cotton seed, just as soon as he learned that respondent R. H. Moore had disposed of the seed, he looked to Moore. This was a material fact, which should have gone to the jury to show that he looked to the respondent R. H. Moore, who was not in bankruptcy, just as soon as he learned that the respondent Moore had disposed of the seed, and the trial judge erred in refusing to permit the defendant to answer, and, further, in stating: 'That would be a conclusion of law.' His going to the referee in bankruptcy was prior to his learning that respondent Moore had gotten the seed. It was vital to show that after learning that seed did not go into the hands of the receiver that he made demand on the respondent Moore and never went to the bankruptcy court thereafter. It was error for the court to rule such answer a matter of law, and not permit the witness to answer.

(2) Because the court erred in directing a verdict for the respondent R. H. Moore, the error being that the respondent Moore knew that appellant's seed were in the warehouse; he weighed appellant's cotton seed and entered the amount on the books; that the jury should have passed upon the evidence of respondent's (Moore's) good faith in making the purchase, with the knowledge he admits he had, and well knew the financial condition of the Mayo Supply Company.

(3) Because the court erred in not directing a verdict in favor of the appellant for the value of the cotton seed, the error being that the respondents held the seed as bailee, or at least the seed were held by the Mayo Supply Company, and had knowledge of the appellant's interest; it being undisputed that the cotton seed had not been paid for, the appellant was entitled to a verdict for the actual value of the seed, one hundred and eight dollars. Then erred as to not sending the question of punitive damages as to both respondents to the jury, the error being that would warrant a verdict for punitive damages against the respondent Moore.

(4) Because the Court erred in allowing, over the

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