Warren v. Lagrone
| Decision Date | 05 May 1879 |
| Docket Number | CASE No. 730. |
| Court | South Carolina Supreme Court |
| Parties | CARSON WARREN v. D. P. LAGRONE AND J. H. LAGRONE, EXECUTORS OF JACOB LAGRONE. |
OPINION TEXT STARTS HERE
1. Where personal property has been converted and sold, an action lies either for damages for the conversion, or for the recovery of the proceeds of sale.
2. An order from a subordinate military officer of the United States army forbidding interference with certain cotton “except in due and proper form,” and an order from the commanding general in Georgia, relating to matters in his own department, are not within the terms or contemplation of “An act to grant rights vested under military orders,” approved September 22d, 1868. Gen. Stat. 506.
3. Exceptions cannot be taken after verdict rendered.
4. This court cannot consider grounds of appeal based solely upon surmise and conjecture, as to the data upon which the jurors arrived at their conclusion.
5. Under motion for new trial on the minutes upon the ground of excessive damages, the Circuit judge has power to order a new trial to be had, unless the plaintiff enter a remittitur for a certain specified amount.
Before CARPENTER, J., at Edgefield, April, 1876.
This was an action of assumpsit brought by the plaintiff in 1866, against Jacob Lagrone, for the value of certain cotton. The defendant dying after action brought, it was revived against his executors. Plaintiff then filed an amended complaint, demanding judgment for $3765, for nineteen bales of cotton, and for $2922.80, for sixteen bales of cotton. The demands were set forth rather in the form of a declaration with several counts, one on a quantum meruit, another on account stated, &c. The defendants accepted service of this amended complaint on March 16th, 1870, in words following: “We accept service of amended complaint, and waive all irregularities as to additional cause of action.” The defendants set up two sealed notes in discount. Also that plaintiffs' claim had been adjudicated in 1865 by the military authorities, as appeared by the following papers:
EDGEFIELD C. H., S. C., August 10th, 1865.
Whereas, it has appeared to my satisfaction that Jacob Lagrone, a citizen of this district, is entitled to the unmolested possession and sale of a certain lot of cotton claimed to have been purchased by Carson Warren, also a citizen of this district:
It is hereby ordered that the said Warren refrain from any interference with the said Lagrone, or his agents, or the cotton in dispute between them, except in due and proper form; and that if he does so interfere he will lay himself liable to arrest and punishment.
(Signed)
Witness:
L. W. METCALF,
M. C. BUTLER.
Captain33 d U. S. C. T.
D. P. LAGRONE.
Commanding Post Edgefield, S. C.
HEADQUARTERS, DEPART. OF GEORGIA,
Augusta, August 31st, 1865.
The cotton sold by Lagrone, which had previously been sold to Warren, will be delivered to Simons, to whom Lagrone sold it. Dr. Lagrone called on me some four weeks since, and stated all the facts in this case, and I advised him to sell the cotton.
Major-General Com.
At the trial plaintiff introduced testimony to show the purchase of the cotton by him from Lagrone, and the price of cotton in 1865, and its sale by Jacob Lagrone. Defendants moved for a non-suit, upon the ground that the action should have been trespass or trover, and not assumpsit. The motion was refused and defendants excepted. The defendants offered in evidence the papers set forth in their answer together with statement of Capt. Metcalf; his Honor ruled them inadmissible, and defendants excepted. The defendants introduced testimony to show that the cotton belonged to Jacob Lagrone at the time he sold it. They also proved their notes.
The jury found a verdict in favor of plaintiff for $5933.82.
Defendants moved for a new trial on the minutes, upon the following grounds:
1. Because his Honor erred in overruling the motion of defendants' counsel for a non-suit, made upon the grounds that the testimony in behalf of plaintiff showed that the action was improperly brought; that the action should have been trespass or trover, and not assumpsit; and in allowing the plaintiff to go to the jury upon the pleadings as presented.
2. Because it is respectfully submitted his Honor the presiding judge erred in not allowing full force and effect to the act of the general assembly of this state, entitled an “Act to quiet rights vested under military orders.” approved and ratified on the 22d day of September, A. D. 1868; the defendants' testator, Jacob Lagrone, having under and by virtue of the military orders of Capt. L. W. Metcalf, 33d U. S. colored troops, then stationed at Edgefield C. H., and the orders of Major-General James B. Steadman, stationed at Augusta, Ga., against rights which were intended to be, and were, as defendants submit, quieted and determined by said orders; and in not allowing full force and effect to said orders issued in August, 1865.
3. Because his Honor erred, as it is respectfully submitted, in not instructing the jury upon the evidence that the said testator having acted in the alleged conversion and sale of the cotton in question, under and by virtue of the said military orders, he should not have been held accountable either for the cotton, its value, or for interest from the date of the alleged conversion and sale.
4. Because his Honor erred in his instructions to the jury that they should allow interest from the date of the alleged conversion, whereas interest, if allowed at all, should have been allowed only from the date of the demand by plaintiff, and no demand was proved.
5. Because the jury, in arriving at their verdict, regarded the alleged contract for the purchase of the cotton as having been made with reference to confederate currency as a basis of value, whereas there was no proof to justify such a conclusion, but on the contrary there was positive and direct proof, uncontradicted and unimpeached, that said contract was made with reference to gold and silver.
6. Because the testimony showed that the value of the cotton alleged to have been converted, at the date of the alleged conversion, was twenty-one and one-half cents per pound; and the jury erred in estimating said cotton at said time at thirty-five cents per pound.
7. Because, it is respectfully submitted, the jury erred in disregarding the testimony that established the fact that the contract between plaintiff and defendants' testator was rescinded previously to said alleged conversion, inasmuch as the cotton was not to be delivered until paid for, and no tender of payment was ever made.
8. Because it is respectfully submitted that his Honor erred in charging the jury, as matter of law, that the contract had not been rescinded, instead of charging that there was testimony to show that the contract had been rescinded, and tending to show that defendants' testator had a right to sell the cotton.
9. Because the verdict of the jury was excessive, oppressive, not warranted by the law and evidence, and contrary to the law and evidence.
The order upon the motion for a new trial is as follows:
1. It is ordered that the motion in arrest of judgment and all the grounds for new trial are overruled, except the ground as to excessive damages.
2. That the ground as to excessive damages be sustained.
3. That said motion for a new trial be and the same is hereby granted, unless the plaintiff within thirty days from the date hereof remit on the record the sum of $2975.82 of the verdict, as of the date thereof, in which case said motion is dismissed, without costs.
The defendants appealed to this court from so much of this order as-
1. Overrules the motion in arrest of judgment, and all the grounds of new trial, except the ground as to excessive damages.
2. As denies the motion for a new trial, in case the plaintiff, within thirty days from the date of said order, remits on the record the sum of $2975.82 of the verdict, as of the date thereof.
Mr. L. F. Youmans, attorney-general, for appellant.
Messrs. M. W. Gary and E. B. Gary, for respondent.
The opinion of the court was deliverd by
The first ground of appeal is that the Circuit judge erred in overruling a motion on the part of the defendants for a non-suit, made upon the ground that the testimony in behalf of the plaintiff showed that the action should have been trespass or trover, and not assumpsit.
The action was commenced in 1866, under the form of practice which existed prior to the adoption of the code of procedure.The pleading, as presented in the “case,” contains the writ and an “amended complaint,” upon which is the following endorsement: “We accept service of the amended complaint, and waive all irregularities as to the additional cause of action,” dated March 16th, 1870, and signed by the attorneys for the appellants.
The complaint seems to have been again amended under an...
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