Knight, Yancey Co. v. Cotton Mills , 80 S.C. 213 ( 1908 )

I concur in the result. As suggested in the opinion of Justice Jones, the apparent conflict in the decisions of the Court is due in some degree to the fact that the Court has not stated in any instance the distinction so important to be kept in mind between the cause of action and the relief sought. The cause of action, whether in tort or contract, consists of the primary right of the plaintiff with the defendant's corresponding primary duty to respect it, and the defendant's wrongful act or omission in violation of plaintiff's primary right. The remedy or relief asked is entirely different. The plaintiff may ask equitable relief for the invasion of a legal right, or a legal remedy for the invasion of an equitable right, or he may ask damages appropriate to an action for tort, where he has stated only a breach of contract. But none of these errors make the complaint demurrable for failure to state a cause of action.

The power of the Court to allow amendment "by correcting a mistake in the name of a party of a mistake in any other respect," it seems to me is unlimited, except by the obligation imposed by the statute on the Court to see that the amendment is in furtherance of justice, and that such terms are imposed as may be just. There must be a bona fide mistake in setting forth the plaintiff's rights and the defendant's invasion of them. Unless the amendment proposed relates to the same transaction or the same subject as the original complaint, then it is manifest the plaintiff can not claim to have made a mistake in the matter to which his pleading relates.

When, however, the plaintiff makes the mistake of supposing one of his rights has been invaded by the defendant in one transaction or a series of transactions relating to the same subject, and discovers another and different right was in fact invaded, it seems to me to be within the power of the Court when it appears to be in furtherance of justice, to grant the amendment, though in strictness the amendment amounts to a change of the cause of action.

The limitation of the power of amendment to conform the pleadings to the facts proved that the amendment shall not change substantially the claim or defense, it seems to me, is by its terms applicable only to amendments proposed while the Court is hearing the evidence or after it has heard it, and not before the trial. Hall v. Woodward, 30 S.C. 564. 9 S.E., 684; Machine Co. v. Alexander, 68 S.C. 508,47 S.E., 711.

MR. JUSTICE GARY concurs in the result and in the opinionof MR. JUSTICE WOODS.