Livingston v. Sims
| Decision Date | 28 July 1941 |
| Docket Number | 15303. |
| Parties | LIVINGSTON v. SIMS. |
| Court | South Carolina Supreme Court |
Sims & Sims, of Orangeburg, for appellant.
A H. Moss and James A. Moss, both of Orangeburg, for respondent.
The plaintiff-respondent brings this action to recover of the defendant-appellant as receiver of the defendant bank named, the sum of one thousand two hundred six and 33/100 ($1,206.33) dollars which he alleges in his complaint he was compelled to pay through the negligence of the bank.
It appears from the record that plaintiff was the owner of ten shares of the corporate stock of the bank which he desired to sell on August 10, 1931. He approached one of the officers of the bank for the purpose of negotiating a sale of this stock, and this officer, who was vice-president and cashier of the bank, informed him that if plaintiff would make no further effort to dispose of the stock, the bank would dispose of it for the account of the plaintiff. The plaintiff acceded to this proposition and made no further effort to sell the stock. That on or about August 11, 1931, he received from the bank its check for $1,000 in full payment of this stock. That as plaintiff is informed and believes, the stock was sold to Louise Wannamaker, the wife of the vice-president and cashier of the bank with whom the plaintiff negotiated for its sale. That plaintiff relied on the statements and conduct of the bank in the particulars aforesaid, and made no further efforts to effect a transfer of the stock on the books of the bank. That it is the custom among brokers in such cases to effect transfers and complete sales of all stocks handled by them for the accounts of their customers, and the contract aforesaid was made in accordance with and reliance upon such custom. That the stock was never so transferred, and in consequence of such negligence of the bank, it remained in the name of plaintiff on the books of the bank. And when the bank closed its doors, the defendant, as receiver of said bank, recovered judgment against plaintiff for the statutory liability thereon, to wit: one thousand two hundred six and 33/100 ($1,206.33) dollars, which plaintiff was compelled to pay, and has paid.
This action is brought to recover it.
For answer, the defendant sets up: (1) Admits the allegations of paragraphs 1, 2, and 3 of the complaint, which allege the citizenship and residence of the plaintiff, and the corporate capacity of the Southern Bank and Trust Company, and that it closed its doors the 25th day of September, 1931 and the appointment of defendant as the receiver to liquidate its assets and settle its affairs. The defendant also pleads the Statute of Limitations.
For a second defense: Answering the allegations contained in paragraphs 4, 5, 6, 7, 8, 9, and 10 of the complaint, alleges that this defendant has no knowledge of the facts alleged therein, but on information and belief denies the same. Admits the allegations contained in paragraph 11. Denies each and every allegation contained in the complaint not herein specifically admitted.
For a further defense, and answering the allegations of paragraph 8 of the complaint, defendant alleges that notwithstanding the power contained in the charter of the bank allowing it to engage in a stock and bond brokerage business, it never engaged in any such business; did not act as broker in the handling of stocks and bonds, and therefore any custom among brokers could not be applicable to said bank.
Upon the issues made by the pleadings, the case came on to be tried by the Honorable P. H. Stoll, Presiding Judge, and a jury.
Defendant moved for a nonsuit, for directed verdict and for new trial, all of which motions were denied. The motion of plaintiff for directed verdict in his favor was granted. From this order defendant appeals.
The appellant, among other grounds of appeal, raises the serious issue that the plaintiff's action is barred by the six-year Statute of Limitations. It must be kept in mind that the Southern Bank and Trust Company is being sued in the capacity of a broker in the person of the receiver, and the gravamen of the plaintiff's action is that he suffered damage because of the bank's breach of contract in failing to transfer ten shares of stock on its books from his name to the name of Mrs. Louise Wannamaker, the purchaser. It is conceded that this action was not brought until six years and six months after this sale was made.
In our opinion the Statute of Limitations applies, and the motion of the defendant for a nonsuit and directed verdict upon this ground should have been granted.
The Statute of Limitations commences to run from the time a cause of action accrues. Code Section 388. The same section provides that in actions for relief on the ground of fraud, the cause shall not be deemed to have accrued until the fraud has been discovered. There is no allegation or proof bringing this case within the latter provision, and hence we are to inquire when the cause of action accrued, without reference to its being grounded upon fraud.
An action resting on breach of contract generally accrues at the time the contract is broken, although substantial damages from the breach are not sustained until afterward. The gist of the action is the breach, and not the consequential damages which may subsequently accrue. Such damages are not the result of a new or continuous breach, but relate back to the original breach which gave the right of action and without which they could not exist. Nominal damages at least can be recovered immediately upon the happening of the breach, and the Statute of Limitations then begins to run; its operation is not delayed until substantial or consequential damages accrue. Thomas' Ex'rs v. Ervin's Ex'rs, Cheves 22, 34 Am.Dec. 586; Sams v. Rhett, 2 McMul. 171; Sinclair's Ex'rs v. Bank of South Carolina, 2 Strob. L. 344; Annotations, 126 Am.St.Rep. 944, 13 Ann.Cas. 692, 15 L.R.A.,N.S., 156, 34 Am.Jur., Limitation of Actions, §§ 113, 115, 137 and 230. And see Annotation 118 A.L.R. 215.
In cases of contract, the general principle is that the Statute attaches as soon as the contract is broken, because the plaintiff may then commence his action, and the limitation is computed from the time of the breach. But the plaintiff contends that while his cause of action might have accrued no right to commence an action came into existence until he had been damaged by reason of the bank's breach of its contract; and, under this view, that the Statute did not commence to run until the accrual of the respondent's right of action, which must be referred to the time when he was compelled to pay the...
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