Finley v. Cudd

• Decision Date: 27 July 1894
• Citation: 20 S.E. 32,42 S.C. 121
• Parties: FINLEY v. CUDD et al.
• Court: South Carolina Supreme Court

20 S.E. 32

42 S.C. 121

FINLEY v. CUDD et al.

Supreme Court of South Carolina

July 27, 1894

Appeal from common pleas circuit court of Spartanburg county; J. J Norton, Judge.

Replevin by Joseph Finley against J. N. Cudd & Co. From a judgment for defendants, plaintiff appeals. Reversed.

Duncan & Sanders, for appellant.

Nicholls & Jones, for respondents.

McIVER C.J.

It appears that the plaintiff had given a lien on his crop for the year 1891 to the defendants, to secure advances; and some time in the latter part of that year an arrangement was entered into between the parties whereby the defendants were to take up a mortgage, then past due, held by one Mitchell on a mare and colt belonging to plaintiff, with the understanding that if the plaintiff would gather his crop and apply the same to the lien held by defendants, they would indulge him for the balance due on the Mitchell mortgage until the fall of 1892. Soon after the Mitchell mortgage was transferred to defendants, they, alleging that plaintiff was neglecting to gather his crop, and permitting the same to waste in the field, seized the crop under a warrant to enforce the lien, and about the same time obtained possession of the mare and colt covered by the Mitchell mortgage, and sold the same under said mortgage. Exactly how the defendants obtained possession of this mortgaged property was one of the disputed questions of fact in the case, the plaintiff claiming that the same was seized by one Holt, as the agent of the defendants, under the mortgage, while the defendants claimed that the plaintiff voluntarily delivered the mare and colt to them. Thereupon this action was brought to recover the possession of the mare and colt, plaintiff insisting that, under the arrangement made with the defendants at the time they obtained an assignment of the Mitchell mortgage the plaintiff was entitled to retain the possession of the animals until the fall of 1892. The defendants, on the other hand, insisted that, by reason of the plaintiff's breach of the agreement to gather his crop and apply the same to the debt secured by the agricultural lien, they were not bound to wait until the fall of 1892 before enforcing the payment of the balance due on the Mitchell mortgage, but were justified in proceeding immediately to do as they had done. The defendants, in their answer, set up a counterclaim for the balance due them under the agricultural lien, as well as balance due them on a mortgage given by plaintiff to one Floyd, which had been assigned to defendants. To this counterclaim the plaintiff demurred, and his demurrer was sustained, and the counterclaim was stricken out. The testimony adduced, which is set out in the case, was conflicting, especially as to who first violated the agreement mentioned above; and, in the course of the testimony, the defendants, against the objection of the plaintiff, was allowed to prove what was the total amount due to them by the plaintiff, the circuit judge ruling that such testimony was admissible in mitigation of damages.

The circuit judge, in the outset of his charge, seems to have treated the case as if it was an action by the plaintiff to recover damages from the defendants for their violation of the agreement not to foreclose their mortgage on the more and colt until the fall of 1892, whereas the true nature of the action seems to have been to recover possession of the mare and colt, together with damages for the alleged unlawful seizure and detention thereof. When counsel for plaintiff called the attention of the court to this misconception of the nature of the action, and offered to allow the case to be considered as an action for damages simply, counsel for defendants declined the offer; and the circuit judge then proceeded to instruct the jury that, in an action for the recovery of personal property, the form of the verdict was prescribed by statute, and used these words: "The form of your verdict will be: 'We find for the plaintiff the possession of the property in dispute, and, if possession cannot be had, then so many dollars, the value thereof, and so many dollars damages.' In that event you would not calculate at all the loss of the animals as any part of the damages, but you would value the use of the animals for the year, and return that value as the value of the animals on the limited title that the plaintiff alleged that he had. As I understand the complaint, it is for the use of the property for one year, and then whatever damages you think the plaintiff would be entitled to. If you find for the defendants, you simply say you find for the defendants." The jury returned the following verdict: "We find for the defendants;" and, judgment having been entered thereon, the plaintiff appeals upon the several grounds set out in the record.

The first, second, and third exceptions, in different forms impute error to the circuit judge in admitting the testimony of defendants showing the amount due by the plaintiff to the defendants "in mitigation of damages." After the demurrer to the counterclaim had been sustained, we do not see any ground upon which such testimony could have been admitted, as it certainly was in no way relevant to any of the issues in the action. While it is ordinarily true that an error in admitting irrelevant testimony will not constitute a ground for a new trial, yet, if it appears that the admission of such testimony tends to mislead the jury, then it does become an error of which this court can take notice. If, as the circuit judge instructed the jury, the plaintiff, if entitled to recover at all, could only recover the value of the use of the animals for one year, which some of the witnesses placed as low as $25, and if the...