State v. Scheper 1

• Decision Date: 06 January 1891
• Parties: State . v. Scheper et al.1
• Court: South Carolina Supreme Court

12 S.E. 564
33 S.C. 562

State .
v.
Scheper et al.¹

Supreme Court of South Carolina.

Jan. 6, 1891.

Variance — Conditions op Bond — Assignments op Breaches—License to Mine Phosphate.

1. Defendants were sued on a bond conditioned that a corporation licensed by the department of agriculture to mine phosphate rock should make faithful monthly returns of the number of tons taken, and prompt payments of "the royalty provided by law, * * * to-wit, one dollar upon each and every ton, to be estimated only on the crude rock, and not upon the rock after it has been steamed and dried. " This part of the bond was correctly set forth in the complaint in the words quoted, but the copy served on defendants omitted the words " and not." The statute provided that the estimate should be made "only on the crude rock." Held, that the variance was immaterial, under Code S. C. § 190, declaring that no variance between the pleading and proof shall be deemed material unless it actually misled the adverse party.

2. The condition of the bond was set out in the third paragraph of the copy of the complaint served upon defendants, and in their answer they "admitted as true the allegations made in the first three paragraphs of the complaint." Held, that this dispensed with further proof of the bond, notwithstanding the variance between original complaint and the copy served.

8. The condition of the bond required monthly returns of the number of tons of rock "dug, mined, and removed, and shipped, or otherwise sent to market." The complaint assigned as breaches that the licensee did not pay the royalty on the rock "dug, mined, and removed by them as aforesaid." Held, that the assignments were sufficient though not made in the very words of the condition.

4. An assignment of breach that the licensee did not make true returns of the number of tons "dug, mined, removed, or shipped, "or pay the royalty thereon, was sufficient, notwithstanding the use of the disjunctive "or, " instead of "and, " as in the bond.

5. A copy of the rules and regulations of the department of agriculture was attached to the license to mine, and contained a provision that, "in all cases where phosphate royalties are not promptly paid in the time provided by law, the license shall be suspended, " and any mining done thereafter "shall be considered and treated as illegal." Held, that the failure of the department to suspend the license until long after the first default did not terminate the liability of the sureties for phosphate mined thereafter, and before the license was actually suspended.

Appeal from common pleas circuit court of Beaufort county; Hudson, Judge.

Action by the state against W. F. Scheper and John F. Hutching on a bond conditioned that W. T. Seward & Co., a body corporate, to which a license had been issued by the agricultural department to work phosphate deposits in the navigable waters of the state, should perform all the requirements of the rules and regulations of the agricultural department in respect to such licenses. The license was as follows: "To all whom these presents may. concern, greeting: Whereas, application has been made to the department of agriculture by W. T.Seward & Co., a citizen, body corporate, of the said state, for a license granting a general right to dig and mine phosphate rock and phosphatic deposits from Broad, Beaufort, Johnson, and Morgan rivers, Parrott and Battery creeks, and tributaries, being part of the navigable streams and waters of the state not now occupied by companies having exclusive rights therein in accordance with the laws of said state in such case made and provided, and the rules and regulations of the said department of agriculture made in pursuance thereof: Now, know ye that, in pursuance of the said laws, rules, and regulations, the said department of agriculture do hereby license the said W. T. Seward & Co., granting unto the said W. T. Seward & Co. a general right to dig and mine phosphate rock and phosphatic deposits in the following streams and waters of the state, not now occupied by companies having exclusive rights therein, to-wit' Broad, Beaufort, Johnson, and Morgan rivers, Parrott and Battery creeks, and tributaries; subject, nevertheless, to the requirements, terms, and conditions prescribed and imposed by and expressed in the said laws of the state, and the rules and regulations of the department of agriculture hereon indorsed, and all such other laws, rules, and regulations as have been and shall hereafter be enacted, made, and prescribed in relation

[12 S.E. 565]

thereto. Thi3 license is for the term of one year from date thereof, renewable at the pleasure of the department of agriculture. In witness whereof the said department of agriculture has caused the seal of said department to be annexed to and this license to be signed by A. P. Butler, the commissioner of agriculture, at Columbia, this 2d day of May, Anno Domini 1887. A. P. Butler, Commissioner of Agriculture. [Seal.] Witness: L.A.Ransom. " On the back of the license were indorsed the following: "Rules and regulations of the department of agriculture for the protection and management of the rights and interests of the state in the phosphate rocks and phosphatic deposits in the navigable streams and waters of the state. Rule 1. All persons, companies, or firms holding phosphate licenses from the board of agriculture are forbidden from subletting the same. Rule 2. No persons, companies, or firms shall be granted or hold general rights and exclusive rights at the same time. Rule 3. The board of agriculture will not grant license to any person, company, or firm no wen gaged, or intending to engage, in the mining of land rock. Rule 4. All persons, companies, or firms who shall apply for phosphate license shall designate the stream or portion of stream or streams in which they propose to mine, and shall not change their location without permission from the commissioner of agriculture. Rule 5. No persons, companies, or firms holding licenses from the board of agriculture shall be allowed to traffic or barter in phosphate rock other than that mined by themselves while holding such license. Rule 6. In all cases where phosphate royalties are not promptly paid in the time prescribed by law the license shall be suspended, and any mining done under the same after such suspension shall be considered and treated as illegal. Rule 7. Whenever suspension occurs under the foregoing rule...