Knight v. Mills
| Decision Date | 23 April 1908 |
| Citation | 61 S.E. 396,80 S.C. 213 |
| Court | South Carolina Supreme Court |
| Parties | KNIGHT, YANCEY & CO. v. JETNA COTTON MILLS. |
Pleading—Complaint—Amendment.
Under Code Civ. Proc. § 194, authorizing a court to amend pleadings in furtherance of justice by correcting mistakes or by inserting other material allegations, etc., in an action for breach of contracts for the future delivery of spot cotton, it was proper to allow plaintiffs to amend by bringing themselves within Civil Code, § 2310, making such contracts void, unless the party contracting to deliver was the owner or assignee of the cotton when the contract was made, or was authorized by the owner or assignee or his agent to make such sale, or it was the bona fide intention of both parties that the cotton should be actually delivered and received in kind at the future time mentioned.
Appeal from Circuit Court, Union County; R. O. Purdy, Judge.
Action by Knight, Yancey & Co. against the Ætna Cotton Mills. From an order granting plaintiff leave to amend the complaint, defendant appeals. Affirmed.
James Munn and Stanyarne Wilson, for appellant.
Sanders & De Pass, for respondents.
The appeal herein is from an order of Judge Purdy granting plaintiffs leave to amend the complaint. Of the five causes of action attempted to be stated the first four related to the recovery of loss or damage by reason of defendant's failure to comply with the terms of four contracts for the future delivery of spot cotton, the first being for $731.25, with interest from November 1, 1905, on October, 1905, contract for 250 bales of cotton; the second for $437.50, with interest from December 1, 1905, on November, 1905, contract for 250 bales; the third for $437.50, with interest from January 1, 1906, on December, 1905, contract for 250 bales;and the fourth for $306.25, with interest from February 1, 1906, on January, 1906, contract for 250 bales. In alleging the said causes of action plaintiffs failed to bring themselves within the requirement of section 2310, Civ. Code, as construed in Barr v. Satcher, 72 S. C. 38, 51 S. E. 530, which holds that in order to bring an action under this section the plaintiff must allege: "(1) That the party making the contract for the sale of cotton for future delivery was the owner or assignee thereof at the time the contract was made; or (2) that the seller was at the time authorized by the owner or assignee or his duly authorized agent to make such sale; or (3) that it was the bona fide intention of both parties—seller and buyer—at the time of making such contract, that the cotton should be actually delivered and received in kind at the future period mentioned." On discovering this deficiency in the complaint, and before trial, plaintiffs served notice of motion to amend so as to make the necessary allegations as required by the statute accompanied by proposed amended complaint, the notice stating that, when the original complaint was served, the law requiring facts to be set out as stated in the amended complaint was overlooked, and the attention of counsel was not called to it until after the receipt of volume 72 of the South Carolina Reports. Judge Purdy granted the amendment on the ground that the complaint presented good causes of action defectively stated, and that the amendment would not make new causes of action.
The appellant contends that the amendments should not have been allowed; that, the complaint stating no cause of action whatever under Barr v. Satcher, 72 S. C. 38, 51 S. E. 530, it was out of the power of the court to order the amendment. We do not think the appellant's contention can be sustained. If this were so, no pleading demurrable for insufficiency could ever be amended. The power of amendment by the Code in the furtherance of justice is so very large that its exercise by the court will rarely be disturbed, because it will seldom happen that the court will exceed its power or abuse the wide discretion given it in such matters. This power is, however, not unlimited, and it is a mistake to suppose that any and everything that may be proposed by way of amendment is allowable provided it is proposed before trial. The power granted the parties to make voluntary amendments as matter of course is regulated by section 193 of the Code of Civil Procedure, which permits any pleading to be once amended before the period for answering expires, or, if not done for purpose of delay, within 20 days after service of an answer or demurrer. Amendments by the court are regulated by section 194, which provides: "The court may, before or after judgment, in furtherance of justice and on such terms as may be just, amend any pleadings, process or proceeding, by adding or striking out the name of any party; or by correcting a mis take in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." This section is a limitation on the power of the court to grant amendments. The nature of the amendment must be such as to make it fall within one of the four classes provided for: (1) Adding or striking out the name of any party; (2) correcting a mistake; (3) inserting other allegations material to the case; (4) conforming the pleadings to the facts proved, and, when an amendment is proposed, the question is first one of power. "Does the amendment fall within either of the four classes named?" If it does not, then the court has no power to grant it. If it does, then it is not grantable as matter of course, but the court is called upon to exercise its discretion and determine whether the proposed amendment is "in furtherance of justice, " and may impose such terms as may be proper.
It will be further noticed that the above section imposes no limits as to time, except in the fourth class of amendments. The express provision is that the amendments may be allowed "before or after judgment, " which, of course, means "at any time." Kennerty v. Etiwan Phosphate Co., 21 S. C. 242, 53 Am. Rep. 669. The fourth class of amendments necessarily must be made after trial begun, for in no other situation could the amendment conform the pleading to the facts proved, but, as to the other classes of amendment, it is purely arbitrary, when the question is one of power, to distinguish between amendments before trial and after trial. The tendency to do so grows out of the mistake of applying to the whole of section 194 language which is only properly applicable to the fourth...
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Elliott v. Carroll
...the cause of action, refer entirely to amendments sought to be made in complaints and not answers. Again quoting from Knight, Yancey & Co. v. Cotton Mills, supra, "It will be further noticed that the above imposes no limits as to time, except in the fourth class of amendments. The express p......
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Taylor v. Atl. Coast Line R. Co
...on the subject in other jurisdictions. A review of the cases was recently made by Mr. Justice Jones in Knight v. Ætna Cotton Mills, 80 S. C. 213, 61 S. E. 396, and further analysis would not be profitable. The important matter is to state a fixed rule on which the courts and the bar may rel......
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Morgan v. Liberty Mutual Insurance Company
...amendments before a trial, and includes such changes as inserting a new cause of action or a new defense. Knight, Yancey & Co. v. Aetna Cotton Mills, 80 S.C. 213, 61 S.E. 396; Elliott v. Carroll, 179 S.C. 329, 184 S.E. 92. Later decisions give wide latitude in permitting party to shape his ......
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Fanning v. Bogacki
... ... amendments mentioned in section 224, that is, amendments ... during the trial, must not substantially change the claim or ... defense. Knight v. Cotton Mill, 80 S.C. 213, 61 S.E ... 397; Kennedy v. Hill, 79 S.C. 270, 60 S.E. 689; ... Jennings v. Parr, 54 S.C. 110, 32 S.E. 73; ... ...