Laffitte v. Tucker
| Decision Date | 11 January 1950 |
| Docket Number | 16308. |
| Parties | LAFFITTE et al. v. TUCKER. |
| Court | South Carolina Supreme Court |
Nicholson & Nicholson, Greenwood, B. E. Nicholson Edgefield, for appellants.
J. W. Cox, Johnston, Jeff D. Griffith, Saluda, for respondent.
Action in this case was commenced in the Court of Common Pleas for Edgefield County on or about January 21, 1949 wherein appellant alleged that respondent had committed waste upon a lot in the Town of Johnston, South Carolina, by removing valuable shrubbery therefrom and leaving the roots of other shrubs exposed in such manner as to injure or cause them to die, such acts taking place between the date on which respondent contracted to sell the premises and the date upon which the sale was consummated. Respondent duly served his answer setting up among other defenses the plea of res judicata. At the time the matter came on for hearing before Honorable J. Woodrow Lewis, the presiding judge, and after the jury was impaneled and sworn, it was agreed, in the absence of the jury, that the plea of res judicata would be disposed of first.
For the purpose of disposing of such plea, it was agreed by counsel representing appellants that the testimony in this case would be the same as that taken in the former case of F. A. Laffitte v. E. W Tucker, which was heard at the November term of Common Pleas Court for Edgefield County before the Honorable James A Moss, special judge, who, after all testimony was in for the plaintiff, upon motion of counsel for the defendants, respondents here, ordered an involuntary nonsuit, and from this order there was no appeal.
After hearing arguments from both sides, his Honor sustained the plea of res judicata, and it is from this ruling and order that appellants come to this Court.
The first action was styled F. A. Laffitte, plaintiff, v. E. W. Tucker, defendant, and was brought under the theory of contract, while the cause of action from which this appeal stems is styled F. A. Laffitte and Sara B. Laffitte, plaintiffs, v. E. W. Tucker, defendant, and is brought under the theory of waste committed upon the property between the date of agreeing to purchase and the consummation of the contract.
A comparison of the two shows that they are the same with the exception that Sara B. Laffitte appears as party plaintiff along with her husband in the second case where she did not in the first and that the removal of such shurbbery is characterized as waste, while the first case is based upon the theory of breach of contract. 30 Am.Jur., Judgments, Sec. 210, P. 946-947.
In the recent case of Griggs v. Griggs, 214 S.C. 177, 51 S.E.2d 622, 627, this Court discussed the doctrine of res judicata rather fully, and it is stated therein: 'The fact that a party through mistake attempts to exercise a right to which he is not entitled or has made choice of a supposed remedy which never existed, and pursued it until the court adjudged that it never existed, does not preclude him from afterwards pursuing a remedy for relief, to which in law and good conscience he is entitled.' Johnston-Crews Co. v. Folk, 118 S.C. 470, 111 S.E. 15; Water, Light & Gas Co. v. City of Hutchinson, 10 Cir., 160 F. 41, 19 L.R.A.,N.S., 219.
In the first case, counsel was required to elect and erroneously chose to proceed under the theory of contract, a supposed remedy which was not available, and were properly nonsuited because title had been accepted by plaintiffs with knowledge that the shurbbery had been removed, while the instant case is bottomed upon the theory of waste which could not be maintained until title had been acquired. Therefore, the causes of action in the two cases were not the same and the doctrine of res judicata does not apply.
A similar situation existed in Jones v. South Carolina Power Co. in which there were two...
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