McMakin v. Fowler
| Decision Date | 11 August 1891 |
| Citation | 13 S.E. 534,34 S.C. 281 |
| Parties | McMakin v. Fowler. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Spartanburg county; Hudson and Izlar, Judges.
Action by James McMakin against W. D. Fowler to recover on notes. Judgment for plaintiff. Defendant appeals. Affirmed.
On the 6th day of November, 1884, the defendant executed five obligations, in the form of promissory notes, whereby he promised "to pay" to the plaintiff good brick in the kiln at McMakin's brick-yard, as follows, viz 100,000 on the 1st May, 1885; the same number on 1st October 1885; the same number on 1st May, 1886; the same number on the 1st October, 1886; and 50,000 on the 1st October, 1887. These obligations, though lacking one of the essential features of a promissory note, will, for convenience merely be designated as "notes" in the further consideration of this case. On or about the 10th of February 1886, after the first two of these notes had matured, and before the remaining three had been payable, the plaintiff commenced an action against the defendant, alleging in his complaint- First, the making of the two notes set out in the complaint by the defendant; second, "that the consideration of said contract was the sale by the plaintiff to the defendant of certain personal property of the value of two thousand and fifty-five dollars;" third, "that at the time the defendant gave to the plaintiff three other contracts of a similar character which make up the amount of the purchase money;" fourth, "that the value of the said brick is five dollars per thousand;" fifth, "that the plaintiff has delivered to the defendant the property aforesaid, and the defendant has refused, although often requested so to do, to deliver to the plaintiff the brick mentioned in the contract aforesaid;" sixth, "that, in consequence of the failure of the defendant to perform his part of the contract, the plaintiff has been damaged in the sum of two thousand and fifty-five dollars; wherefore judgment was demanded for that sum, besides costs and disbursements." To this complaint defendant answered, setting out specifically the terms of the trade with the plaintiff, whereby plaintiff sold to the defendant his brick-yard, and also the engine, brick-machine, and other machinery and tools used there in the making of brick, under the representation that the clay was 10 feet thick over all of the land, and that said engine and machinery were as good as new; that in consideration thereof he gave to plaintiff the two notes set out in the complaint, and also the other three notes mentioned in the foregoing statement, "it being well understood that the brick therein referred to was unburned brick,"-but alleging that by reason of the delay in putting him in possession of the brick-yard, and by reason of the failure of the property purchased to come up to the terms of the warranty, he had sustained damages for which he set up a counter-claim. He also alleged that ever since he obtained possession of the brick-yard he was always ready to deliver the brick according to the contract, as he claimed it to have been understood by both parties, but that plaintiff refused to receive anything but burned brick. To this answer, or so much thereof as set up a counter-claim, plaintiff filed a reply denying each and every allegation upon which such claim was based. The case, being thus at issue, came on for trial before his honor, Judge Wallace, and a jury, on the 27th of March, 1888, when a verdict was rendered in favor of plaintiff for $1,186.07, upon which judgment was duly entered. In the mean time, the other three notes having matured, the present action was commenced on the 16th of February, 1888, a short time before the previous case was tried; and in his complaint the plaintiff alleges as his first cause of action the making for valuable consideration by the defendant of the obligation (which for convenience we designate as a "note") payable 1st October, 1888, setting out a copy thereof, and that defendant, although often requested so to do, has refused and neglected to deliver to the plaintiff the brick mentioned in said contract, to the damage of the plaintiff $700; and as a second and third cause of action sets out the other two notes, with similar allegations, and demands judgment for the aggregate sum of these three notes. To this complaint the defendant answered, admitting the execution of the three notes set out in the complaint, but denying each and every other allegation therein contained. As a further defense, he pleads the judgment recovered in a former action as a bar to this. From the fact that the plea is a former recovery, and not the pendency of another action for the same cause, we infer that, although the present action was commenced before the recovery of judgment in the previous case, the answer was filed after such judgment was recovered; and while it is possible that a point might be raised as to whether the plea should not have been pendency of another action rather than of a former recovery, yet as no such point was suggested, and as it would be purely technical, we will ignore it altogether in the consideration of the present appeal. The case first came on for hearing before his honor, Judge Hudson, when the counsel for defendant moved to dismiss the complaint upon the ground that the matters now sought to be brought in issue were res adjudicata, as shown by the record of the former case filed as an exhibit to the answer in this case. Thereupon plaintiff's counsel asked leave to introduce parol testimony for the purpose of showing that the issues involved in the present action were not submitted to the jury in the former action, reading from the stenographic notes of the charge of Judge Wallace in the former case, wherein it appeared "that, at the request of the attorney for the defendant on the trial of that action," the jury were instructed "that only two of the contracts mentioned in the complaint in that action, to-wit, those that were due at the time of the commencement of that action were in issue, and were submitted to them." After hearing argument, an order was passed sustaining the plea of former recovery, and dismissing the complaint herein. But during the same term the matter was, at the request of Judge Hudson, reconsidered, and, after more full argument, another order was passed rescinding the previous order, restoring the case to the docket, "and that the plaintiff have leave to introduce testimony to show what issues were submitted to the jury" on the trial of the former action. To this order defendant duly excepted for the purpose of an appeal, after final judgment was rendered. The case was then continued, as we suppose, and at a subsequent term came on for trial before his honor, Judge Izlar, and a jury, when a similar motion to that presented to Judge Hudson, was submitted, which...
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