Guimarin v. Southern Life & Trust Co.

• Decision Date: 28 July 1916
• Docket Number: 9483.
• Citation: 90 S.E. 319,106 S.C. 37
• Parties: GUIMARIN ET AL. v. SOUTHERN LIFE & TRUST CO.
• Court: South Carolina Supreme Court

90 S.E. 319

106 S.C. 37

GUIMARIN ET AL. v. SOUTHERN LIFE & TRUST CO.

No. 9483.

Supreme Court of South Carolina

July 28, 1916

Appeal from Common Pleas Circuit Court of Richland County; Ernest Moore, Judge.

Action by W. B. Guimarin and another against the Southern Life & Trust Company, as receivers of Central Carolina Construction Company, and Southern Life & Trust Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Mordecai & Gadsden & Rutledge, of Charleston, and Robt. Moorman, of Columbia, for appellant.

Frank G. Tompkins, of Columbia, for respondents.

FRASER J.

The appellant states its case in part as follows:

"This is an action brought by plaintiffs against defendants seeking to recover the balance due upon an account for material and labor furnished under a contract made between Southern Life & Trust Company as receiver of the Central Carolina Construction Company and the Y. M. C. A. of Charleston and the Y. M. C. A. of Columbia." "It was also claimed in the complaint that the Southern Life & Trust Company individually had made itself liable for this indebtedness, and recovery was sought against it individually in this action." "The answer of the defendants is a general denial of some of the allegations on information and belief and of others absolutely." "Subsequent to the service of the answer the defendants moved to amend same, and the proposed amended answer is fully set out in the case." "The motion to amend was refused by the special judge whose ruling and remarks are found in the case. The gist of this ruling is that the matters set up in the amendment, which was really a counterclaim, could be proved by the defendant under the general denial in the original answer." "The case soon after proceeded to trial before Judge Moore in the same term on the complaint and original answer." "Upon the conclusion of the testimony and judge's charge verdict was rendered for the full amount insisted upon by the plaintiffs. Upon entry of judgment, notice of appeal was served, and thereafter the exceptions set out in the case."

"Argument.

These exceptions, for the purpose of argument, may be grouped under the following heads: First: The special judge erred in refusing to amend the answer, such amendment being meritorious and in furtherance of justice, and such refusal being an abuse of discretion; and erred also in holding that the same matters set up in the proposed amendment could be proved under the answer as filed."

I. I think the first proposition should be sustained in part only. There was no abuse of discretion. I do not express an opinion as to whether the amendment should or should not have been allowed, but simply that it was not an abuse of discretion to refuse to allow the amendment. The refusal of the motion to amend was based in part on a mistake of the law. The special defenses, proposed to be set up in the amended answer, are not available, under the general denial. The discretion of his honor was based upon an erroneous proposition of law, and I think this portion of the proposition should be sustained.

II. Plaintiffs' witness was asked the question: "You know that there was a provision in this contract for a penalty for failure to finish work in proper time, did you not?" The presiding judge excluded the testimony. There was no error here. The contract is in writing and must speak for itself. Besides this, it applied to the excluded special defense.

III. Were the receivers individually bound? The appellant claims that the letters upon which plaintiff seeks to hold the receivers were signed "as receivers," and therefore they incurred no individual responsibility. This position cannot be sustained. The letters were signed "receivers," not "as receivers." The words "agents," "trustee," "receiver," etc., are merely descriptions of the person, and if the liability is to be restricted to the official character, there must be something to indicate that purpose.

IV. The fourth proposition is that his Honor erred in not charging certain requests to charge in the words in which the requests were made. The exception conceded that the propositions were covered by the general charge. The exception that raises this question cannot be sustained.

V. "The next point is that the trial judge erred in refusing to charge as requested in the sixth request, viz that the contract provided...