Walker v. Mcdonald

• Decision Date: 03 February 1926
• Docket Number: (No. 11017.)
• Citation: 134 S.E. 222
• Court: South Carolina Supreme Court
• Parties: Walker. v. Mcdonald.

134 S.E. 222

Walker.

v.Mcdonald.

(No. 11017.)

Supreme Court of South Carolina.

Feb. 3, 1926.

Appeal from Common Pleas Circuit Court of Richland County; M. S. Whaley, County Judge.

Action by T. J. Walker against W. B. McDonald. Prom a judgment for plaintiff, defendant appeals. Reversed and remanded.

Melton & Belser, of Columbia, for appellant.

Graydon & Graydon, of Columbia, for respondent.

COTHRAN, J. The complaint in this case sets up two separate causes of action: One for the recovery of $652.50, paid by the plaintiff to the defendant for a half interest in a partnership then formed between them, doing business under the name of McDonald Roof Paint Company, the plaintiff alleging that he was induced to enter into said parnership and part with his money by the misrepresentations of the defendant detailed in the complaint, amounting to fraud and deceit, to his damage in the sum stated with interest; the other for a balance of $2,099.36, alleged to be due to the plaintiff by the defendant, as his share of the net profits of the business while it continued, which would be ascertained upon an accounting of the business by the defendant, which he demanded.

The original summons and complaint were served on November 6, 1923. Within 20 days thereafter the plaintiff served an amended complaint. On December 17, 1923, the defendant served a demurrer to the complaint, upon the ground that it appeared on its face that there was a misjoinder of causes of action. This demurrer was overruled by an order dated January 4, 1924, stating a formal conclusion without reasons. On January 14, 1924, the defendant served a notice of a motion for an order requiring the plaintiff to elect upon which of the two alleged causes of action set forth in the complaint he would proceed to trial. This motion was refused in an order dated March 7, 1924, upon the ground that "it comes too late."

Thereafter the defendant moved for an order allowing him to amend his answer by demanding that the plaintiff make such election. The presiding judge granted the motion, and the plaintiff appealed from this order. This court, in an opinion filed February 28, 1925 (130 S. C. 513, 126 S. E. 646), reversed the same and remanded the ease, up-on the ground that the matter of requiring an election had been decided by the order of March 7.

Thereafter the defendant made a motion, which was heard on April 25, 1925, to require the plaintiff to try the two causes of action separately, and to require the cause of action for an accounting to be tried before the judge sitting as a court of equity without a jury, which motion was refused.

The case then came up for trial before his honor, County Judge Whaley, and a jury, on April 27, 1925, the trial resulting in a verdict in favor of the plaintiff upon the first cause of action for $652.50 with interest, and upon the second cause of action for $192.45. From the judgment entered upon the verdict, the defendant has appealed upon various exceptions. It is not deemed necessary to consider more of them than the first and second.

The defendant's first exception assigns error in the order of January 4, 1924, overruling the demurrer to the complaint upon the ground that there was a misjoinder of causes of action.

That this order is appealable now after final judgment is conclusively settled by the following cases, decided by this court: Hyatt v. McBurney, 17 S. C. 143; Lee v. Fowler, 19 S. C. 607; Thatcher v. Massey, 20 S. C. 542; Elliott v. Pollitzer, 24 S. C. 81; Bomar v. R. Co., 30 S. C. 451, 9 S. E. 512; Wallace v. Carter, 32 S. C. 314, 11 S. E. 97; McCrady v. Jones, 36 S. C. 136, 15 S. E. 430; Brown v. Pechman, 55 S. C. 555, 33 S. E. 732; Morgan v. Smith, 59 S. C. 49, 37 S. E. 43; Bodie v. R. Co., 66 S. C. 302, 44 S. E. 943.

The general rule is that the causes of action permitted to be united under the Code (section 430) in a single action, must be consistent with each other.

In Bliss, Code Pi. § 122, it is said:

"If they are such as can be united in one action, they must be consistent with each other— that is, one cause of action, if valid, should not show the others to be bad."

In Cline v. R. Co., 110 S. C. 534, 96 S. E. 532, the court said:

"The object of the framers of the Code of Procedure was to secure the trial, for all parties interested in the cause, of those issues which practically had the same birth."

Instances may occur, however, where inconsistent causes of action may be united in the same complaint where only one recovery is sought and the pleader is uncertain what the evidence may disclose. The authorities sustain the proposition that they cannot be united where they seek separate recoveries, and where, if separately instituted, a case of election of remedies would be presented. For instance, if the plaintiff in the case at bar had brought an action based solely upon the alleged deceit and fraud alleged in his first cause of action and had failed, he could not afterwards have brought a second suit based upon his demand for an accounting of the partnership which his former action had disaffirmed. As is said by the court in McMahan v. McMahon, 122 S. C. 336, 115 S. E. 293, 26 A. L. R. 1295:

"The doctrine of election of remedies is regarded as being an application of the law of estoppel, upon the theory that a party cannot in the assertion of his right occupy inconsistent positions in relation to the facts which form the basis of his respective remedies; it is based on the proposition that, when a party has two remedies proceeding upon opposite and irreconcilable claims of right, the one adopted excludes the other. * * * It means that a certain state of facts relied upon as the basis of a certain remedy is inconsistent with and repugnant to another certain state of facts relied upon as the basis of another remedy. If a party should invoke a...