Rainwater v. Merchants' & Farmers' Bank of Cheraw

• Decision Date: 28 September 1917
• Docket Number: 9815.
• Citation: 93 S.E. 770,108 S.C. 206
• Parties: RAINWATER ET AL. v. MERCHANTS' & FARMERS' BANK OF CHERAW.
• Court: South Carolina Supreme Court

93 S.E. 770

108 S.C. 206

RAINWATER ET AL. v. MERCHANTS' & FARMERS' BANK OF CHERAW.

No. 9815.

Supreme Court of South Carolina

September 28, 1917

Appeal from Common Pleas Circuit Court of Chesterfield County; James W. De Vore, Judge.

Actions by Morton Rainwater, Julius L. Johnson, and Rufus Powe respectively, against the Merchants' & Farmers' Bank of Cheraw, S.C. From orders refusing reference, defendant appeals. Reversed.

Watts and Gage, JJ., dissenting.

The complaint, omitting the caption, is as follows:

The complaint of the above-named plaintiff respectfully shows to the court:

(1) That the plaintiff is now, and was at the times hereinafter mentioned, a resident of the county of Marlboro, state of South Carolina, and the defendant is now and was, at the times hereinafter mentioned, a corporation under and by virtue of the laws of the state of South Carolina, having its principal place of business in the town of Cheraw, county of Chesterfield, state aforesaid.

(2) That the defendant now has in its possession 13,841 pounds of lint cotton belonging to the plaintiff. The plaintiff is informed and believes that the defendant has a claim or mortgage on one half of this cotton, that is to say, 6,920 1 /2 pounds, and the plaintiff is also informed and believes that the defendant has a claim or a mortgage on the remaining one half to the extent of plaintiff's account with P. E. Hamer, which amounts to $409.66, which would amount to 4,819 1/2 pounds. The balance of the said cotton, that is, 2,101 pounds, and, though plaintiff has demanded the same, the defendant knowingly and willfully retains possession to the great damage and injury of the plaintiff.

(3) The defendant now has in its possession property of the plaintiff in the amount of 2,101 pounds of cotton and, though plaintiff has demanded the same, the defendant knowingly and willfully retains possession thereof.

(4) Plaintiff alleges that the value of the property referred to which the defendant unlawfully and willfully deprives the plaintiff of, is worth $178.58.

(5) That the unlawful and willful retention of plaintiff's property by the defendant has greatly damaged the plaintiff and has retarded, injured, and damaged the plaintiff's preparation and management of his farm work during the year 1915 to a large extent, and has forced the plaintiff at expense, worry, trouble, and time lost to make other plans and arrangements in order to carry on his business. And the defendant well knew and now well knows that its retention of plaintiff's property has damaged and is damaging plaintiff, and at the time it refused to deliver said property to the plaintiff it well knew that plaintiff would be damaged in his farming operations and business, and plaintiff alleges that the loss sustained and inflicted on account of the willful and unlawful acts of the defendant amount to $500, actual damages.

(6) That the defendant in its unlawful and willful detention of plaintiff's property has acted in a high-handed, unlawful, and willful manner, well knowing that its acts would inflict injury upon the plaintiff; and this plaintiff is informed and believes that he is entitled to receive in addition to his actual damages punitive damages, and that on account of the willful and knowing injury inflicted upon this plaintiff the defendant should be punished in the sum of $500.

Wherefore plaintiff demands judgment in the sum of $1,178.58, together with the costs and disbursements of this action.

The answer, omitting the caption, is as follows:

The defendant, answering the complaint, herein, says:

First, for a first defense: (1) That it admits the allegations contained in paragraph 1 of the said complaint; (2) that it denies, on information and belief, each and every other allegation contained in the said complaint, and alleges that plaintiff has been fully paid for all labor expended by him on said crop.

Second, for a second defense: (1) On information and belief, this defendant alleges that the plaintiff was a share cropper of P. E. Hamer's, and that such crops as plaintiff produced during the year 1914, if any, were the property of P. E. Hamer; and that same were duly mortgaged to this defendant, without any notice, either actual or constructive, of any claim of the plaintiff's whatsoever; and that whatever cotton this defendant may have received, which was produced by the plaintiff, was received voluntarily on the part of both plaintiff and P. E. Hamer; and that said P. E. Hamer is largely indebted to this defendant on a debt which the said mortgage on said crops was given to secure, and this defendant is informed and believes that the plaintiff owes the said P. E. Hamer very much more than any part of the crop coming to him was worth when so delivered; and it denies specifically that there was any balance coming to the plaintiff under a proper accounting and settlement in a court of equity as between the plaintiff and said P. E. Hamer; and alleges, on information and belief, that this is a collusive suit between the plaintiff and P. E. Hamer for the purpose of endeavoring to take away from this defendant a large part of the cotton which the said Hamer actually paid to the said bank on the said mortgage, and the said P. E. Hamer is the moving spirit in the same; and that it is a proceeding brought for the purpose of defrauding this defendant out of the cotton, which was voluntarily delivered by all of the parties to this defendant, to be applied on the said debt.

Wherefore the defendant asks that the complaint be dismissed with costs.

Stevenson & Prince, of Cheraw, for appellant.

J. J. Evans and J. K. Owens, both of Bennettsville, for respondents.

GARY C.J.

This is an appeal from an order refusing a reference. The complaint alleges:

"(2) That the defendant now has in its possession 13,841 pounds of lint cotton belonging to the plaintiff. The plaintiff is informed and believes that the defendant has a claim or mortgage on one half of this cotton, that is to say, 6,920 1/2 pounds, and the plaintiff is also informed and believes that the defendant has a claim or a mortgage on the remaining one half, to the extent of plaintiff's account with P. E. Hamer, which amounts to $409.66, which would amount to 4,819 1/2 pounds. The balance of the said cotton is 2,101 pounds, and, though plaintiff has demanded the same, the defendant knowingly and willfully retains possession, to the great damage and injury of the plaintiff.

(3) The defendant now has in its possession property of the plaintiff in the amount of 2,101 pounds of cotton, and, though plaintiff has demanded the same, the defendant knowingly and willfully retains possession thereof."

After denying the allegations of the complaint, the defendant interposed the following as a defense:

"On information and belief, this defendant alleges that the plaintiff was a share cropper of P. E. Hamer's, and that such crops as plaintiff produced during the year 1914, if any, were the property of P. E. Hamer; and that same were duly mortgaged to this defendant, without any notice, either actual or constructive, of any claim of the plaintiff's whatever; and that whatever cotton this defendant may have received, which was produced by the plaintiff, was received voluntarily on the part of both plaintiff and P. E. Hamer; and that said P. E. Hamer is largely indebted to this defendant on a debt which the said mortgage on said crops was given to secure; and this defendant is informed and believes that the plaintiff owes the said P. E. Hamer very much more than any part of the crop coming to him was worth when so delivered. * * *"

The appellant's exceptions are as follows:

(1) "The court erred, it is respectfully submitted, in holding that, under the pleadings, this was not a case of equity for an accounting, but was a case for damages for a jury."

(2) "The court erred, it is respectfully submitted, in not holding that this was simply an action in equity for an accounting between a share cropper and his employer, and that the defendant bank stood in the shoes of the employer, and that it was a matter of equity and should be referred."

On the call of the case a preliminary motion was made to dismiss the appeal on the ground that the order is not appealable, and, therefore, that the court is without jurisdiction, at this time, to hear the case.

It is only necessary to state that an order which deprives a party of a mode of trial to which he is entitled by law is appealable.

We proceed to determine whether the effect of said order was to deprive the appellant of such right.

Section 331 of the Code is as follows:

"Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: (1) Where the trial of an issue of fact shall require the examination of a long account on either side; in which case, the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or (2) where the taking of an account shall be necessary for the information of the court before judgment. * * *"

That section must be considered in connection with section 312 of the Code, which provides that an issue of fact in an...