Goodale v. Page
| Decision Date | 17 September 1912 |
| Citation | 75 S.E. 700,92 S.C. 413 |
| Parties | GOODALE v. PAGE et al. GILLESPIE BROS. v. SAME. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Chesterfield County; J. W De Vore, Judge.
"To be officially reported."
Actions by S. O. Goodale and by Gillespie Bros. against J. W. Page and the Bennettsville & Cheraw Railroad Company. From judgments for plaintiff in each action, defendants appeal. Reversed.
Stevenson & Matheson, of Cheraw, for appellants. Edward McIver and W P. Pollock, both of Cheraw, for respondents.
The above-stated cases were tried together on circuit and in this court. The issues are the same in substance, and what is said in disposing of one applies to the other.
The plaintiff sued on two causes of action. In the first, he alleges a joint contract on the part of defendants with himself, whereby he was to furnish the railroad company with cross-ties at 25 cents each; that he delivered 12,221 ties under the contract; and that defendants owed him a balance therefor of $1,823.90. The second cause of action is based on quantum meruit; and it is alleged that plaintiff furnished and delivered to defendants 12,221 ties for use in the construction and repair of said railroad, and which were accepted and so used; that they were worth 25 cents each; and that defendants owe the plaintiff therefor a balance of $1,823.90.
The defendant Page denies the allegations of the complaint, and gives his version of the transaction between himself and the plaintiff, and also that between himself and his codefendant as follows: He says that he made a contract with the railroad company to furnish it cross-ties of a specified size and kind; that he then made a contract with plaintiff to furnish a certain number of said ties at 25 cents each, which was 2 cents apiece less than the railroad company had agreed to pay him for them, the ties to be shipped to J. J. Heckart, an officer of the company; that his contract with plaintiff was independent of his contract with the railroad company, and that, in making it, he acted for himself alone, and not as agent of the railroad company, and that the railroad company had nothing whatever to do with his contract with plaintiff except that, by his agreement with plaintiff, the ties were to be shipped to the railroad company, and were to be subject to its inspection; that plaintiff shipped a lot of ties under this contract, but many of them did not come up to the specifications agreed upon, and were rejected by the railroad company; that he thereupon promptly notified plaintiff of their rejection, and they afterwards inspected them together, and it was found that many of them failed to come up to the size and kind agreed upon, and he and plaintiff then made a new contract, whereby he was to pay plaintiff the price agreed upon for all ties that came up to contract, and half price for all others which the company would accept, notwithstanding they did not come up to the specifications agreed upon; that he paid plaintiff for all ties used under this contract, except a balance of $89.52, which he was willing to pay.
The answer of the railroad company denies the allegations of the complaint, and alleges that it made a contract with its codefendant Page to furnish it cross-ties, and that it has fully complied with that contract and paid him for all the ties furnished under it; that it did not know plaintiff in the transaction, and made no contract with him, directly or indirectly.
Under the charge of the court, the plaintiff in each case recovered judgment against both defendants, and both have appealed therefrom.
It is an elementary rule that you cannot allege one cause of action and prove another; nor can you allege a joint liability and prove a joint and several or a several liability in actions on contracts. Patton v. Magrath, Rice, 162, 33 Am Dec. 98; Pope Mfg. Co. v. Cycle Co., 55 S.C. 528, 33 S.E. 787. Now, in this case, plaintiff alleged a joint contract on the part of the defendants with him. At the trial he was allowed, without amendment of his complaint, to attempt to prove a different contract--one which had not been alleged--to wit, a contract made with him by the defendant railroad company through the defendant J. W. Page, as its...
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