McDaniel v. Monroe

• Decision Date: 01 April 1902
• Citation: 41 S.E. 456,63 S.C. 307
• Parties: McDANIEL v. MONROE et al.
• Court: South Carolina Supreme Court

41 S.E. 456

63 S.C. 307

McDANIEL v. MONROE et al.

Supreme Court of South Carolina

April 1, 1902

Appeal from common pleas circuit court of Anderson county; Watts and Benet, Judges.

Action by Abe McDaniel against Monroe Bros Judgment for plaintiff.Defendants appeal.Affirmed.

Breazeale & Rucker, for appellants.R. A. Cooper and Bonham & Watkins for appellee.

MCIVER C.J.

This was an action to recover an alleged balance due on the sale of a bale of cotton, sold and delivered by the plaintiff to the defendants.The complaint, as originally framed, stated only one cause of action, based upon the alleged sale and delivery of the cotton at a specified price, and the failure and refusal of the defendants to pay anything more than a very small part of the amount due, and judgment was demanded for the balance due.Within the time allowed the the plaintiff to amend his complaint as a matter of course, the plaintiff filed an amended complaint, purporting to state two causes of action, the first being substantially the same as that stated in the original complaint, and the second (omitting the allegation of the partnership between the defendants) being stated as follows: "That on or about the 11th day of November, 1899, the said Monroe Brothers being engaged in the business of buying cotton on their own accord, bought for cash from the plaintiff, who is a planter one bale of cotton, weighing 455 pounds, at the price of 7 9/20 cents per pound, amounting in the aggregate to the sum of $33.90, and they failed and refused, and do fail and refuse, to pay to plaintiff except the sum of $2.35; and said defendants willfully and wantonly and maliciously, and with a high nature and defiant spirit, and in contravention of plaintiff's rights, and intending to injure and oppress the plaintiff, did make way with and dispose of such cotton before paying for the same, to plaintiff's damage $200, and judgment was demanded for the sum of $31.55 (the balance due on the sale of the cotton) and $200 punitive damages."The defendants gave notice that they would move before his honor Judge Watts, at a time and place stated,--"for an order to strike from the record the amended complaint herein, on the ground that the first cause of action in said amended complaint is essentially the same as the cause of action set forth in the original complaint, and, therefore, no amendment; and the second cause of action set forth in the amended complaint changes substantially the nature of the original cause of action, in that the alleged cause set forth in the original complaint is an action on contract, while the second cause of action set forth in the amended complaint is an action in tort."This motion was refused, and the defendants thereupon filed their answer, setting up several defenses which need not be stated here, as none of the questions raised by this appeal relate to these defenses.The case came on for trial before his honor Judge Benet, when the defendants demurred to the second cause of action, upon the ground that the facts stated therein were not sufficient to constitute a cause of action, which demurrer was overruled, and the trial proceeded, resulting in a verdict in favor of the plaintiff, in the following form: "We find for the plaintiff $31.50, and $8.50 punitive damages,--in all $40.00."A motion for a new trial on the minutes was made and refused, and thereupon it is stated that counsel for defendants"gave due notice of his intention to appeal to this court, and now does appeal upon the following grounds of error: (1) Because his honor Judge Watts erred in not holding that the amended complaint should be stricken from the record, because the first cause of action therein set forth was substantially the same as that contained in the original complaint, and was, therefore, no amendment, and the second cause of action changed substantially the nature of the original cause of action, in that the said cause of action set forth in the original complaint was an action upon contract, and the cause of action in the amended complaint, in the second cause of action, is an action in tort.(2) Because his honor Judge Benet erred in overruling the oral demurrer on the second...