New Home Sewing Machine Co. v. Wray , 28 S.C. 86 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McIver.

The only question raised by this appeal being whether the Circuit Court erred in overruling a demurrer to the complaint, it will be necessary to make a condensed statement of the allegations of the complaint and the several grounds of demurrer, though, from the peculiar frame of the complaint, it will be well for the reporter to set it out in full as well as the several grounds of demurrer. The first paragraph simply alleges that the plaintiff is a corporate body; the second, that defendant, E. G. Wray, bought from plaintiff a number of sewing machines, and gave therefor the several notes under seal, six in number, particularly described in the several subdivisions of this paragraph, to the plaintiff; the third,, that none of said notes were paid at maturity; the fourth, that the entire amount due on said notes is eighteen hundred and sixty dollars; the fifth, that “the defendant, J. A. L. Wray, bound and obligated himself to pay said indebtedness * * * by and through his letter directed and addressed to the defendant, E. G. Wray, before the said indebtedness was incurred and the said notes were made and executed, which letter the said E. G. Wray read to plaintiff’s agent,” and that upon the strength of such letter and other representations made by said E. G. Wray, the plaintiff was induced to sell him said machines; the sixth, that defendant, E. G. Wray, sold most of the machines and received payment therefor, and after-wards made an assignment to said J. A. L. Wray of certain accounts amounting to thirteen hundred and forty-eight dollars, in consideration of the sum just stated, acknowledging that he had received full satisfaction therefor; the seventh, that at the time of making said assignment, and long prior thereto, said E. G. Wray resided at Richburg, in .Chester County, and conducted a mercantile business, and that immediately after 'making said assignment he absconded from the State; the eighth, that said J. A. L. Wray took into his possession the accounts mentioned in said assignment, together with such goods and chattels as were left by said E. G. Wray in Richburg; the ninth, that said J. A. L. Wray inquired for the creditors of said E. G. Wray, “and did pay in full all the indebtedness of the said E. G. Wray, due and unpaid at Richburg, S. C.”; the tenth, that said J. A. L. Wray retained possession of said goods and chattels, except a number of the sewing machines, which he shipped to defendant, C. P. Wray, at Ridgeway, S. 0., who received and appropriated the same to his own use; the eleventh, that the said assignment ivas without consideration, and made to hinder and delay the creditors of said E. G. Wray, and that this was well known to defendants, J. A. L. Wray and C. P. Wray, at the time they took possession of said goods and chattels and converted them to their own use; the twelfth, that a short time prior to the said assignment, the defendant, E. G. Wray, was a joint tenant with defendant, C. P. Wray, of a certain tract of land in Fairfield County, and that the interest of E. G. Wray therein, worth twenty-five hundred dollars, was represented by said C. P. Wray to plaintiff’s agent to have been paid for in full, and that upon such representation plaintiff was induced to extend and enlarge credit to the said E. G. Wray; and “that the defendants, J. A. L. Wray and Charles P. Wray, have, by collusion with each other and with E. G. Wray, by misrepresentations and misleading the plaintiff to credit the defendant, E. G. Wray, by informing the plaintiff that the said E. G. Wray had paid for the land before mentioned by having the said land transferred and conveyed without consideration to the said Charles P. Wray, after the said E. G. Wray had contracted and incurred the aforesaid indebtedness with plaintiff, which was well known to them — all which the defendants did with the intention to defraud and delay and hinder the creditors of the said E. G. Wray.”

The complaint demands judgment: “1st. That the defendants, J. A. L. Wray and Charles P. Wray, account to the plaintiff for the proceeds of the sale of all the goods and chattels formerly belonging to said E. G. Wray, which they took into their possession, or an amount equal to their value.” 2nd. That the plaintiff have judgment against all of the defendants for the amount of said notes, and such other and further relief as the court may see fit to grant.

To this complaint the defendant, Charles P. Wray, interposed a demurrer upon two grounds: 1st. Because several causes of action have been improperly united in the complaint. 2nd. Because the Court of Common Pleas for Chester County, where the action was instituted, has no jurisdiction of so much of the complaint as seeks to set aside an alleged fraudulent conveyance of a tract of land situate in Fairfield County. The other two defendants answered separately, each denying all the material allegations of the complaint. The question raised by the demurrer was heard by his honor, Judge Norton, who rendered a decree, which should likewise be reported in full, overruling the demurrer, and granting leave to the plaintiff to amend its complaint in such particulars as it may be advised, with leave to defendants to plead to such amended complaint within twenty days after service thereof. From this decree defendant, C. P. Wray, appeals, alleging error, on the several grounds set out in the record, in overruling his demurrer, and also in not granting him leave to answer; and all the defendants appeal on the ground that the complaint does not state facts sufficient to constitute a cause of action, and should, therefore, be dismissed.

We will first consider the appeal of all of the defendants, whereby it is contended that the complaint should be dismissed, because it does not state facts sufficient to constitute a cause of action. Inasmuch as it does not appear in the “Case,” as prepared for argument here, that this question was presented to, or decided by, the Circuit Judge, it is not clear that we could consider it here, as our jurisdiction is confined to a review of the rulings in the court below. ¹ But waiving this, we do not think such a demurrer could have been sustained, for it is quite clear that the complaint does state sufficient facts to constitute a cause or causes of action, growing out of the notes, against the defendant, E. G. Wray; and if those facts are admitted, as they would be by the demurrer, the plaintiff would at least be entitled to judgment against E. G. Wray for the amount of the notes, and hence the complaint could not have been dismissed.

We turn, then, to the consideration of the questions raised by the demurrer of C. P. Wray. The first ground of this demurrer is that several causes of action have been improperly united, and it is claimed that there are nine distinct causes of action which the complaint undertakes to set forth—the first six being based upon six different notes or contracts under seal, whereby.E. G. Wray promised to pay plaintiff the several sums specified therein; the seventh being an action against J. A. L. Wray alone upon an alleged guaranty of said notes; the eighth being an action against J. A. L. Wray and.E. G. Wray to set aside an alleged fraudulent assignment; “and the ninth being an action against all the defendants for deceit and misrepresentation, or an action to set aside as fraudulent and void an alleged conveyance of land in Fairfield County from the said E. G. Wray to said C. P. Wray.”

The rule seems to be, that a demurrer upon the ground that two causes of action have been improperly united in a complaint, cannot be sustained where one of such causes of action is insufficiently stated. As is said in Pomeroy on Remedies, section 448, at page 484, in speaking of a demurrer for misjoinder of causes of action: “To sustain a demurrer for this reason, however, the complaint must contain two or more good grounds of suit which cannot properly be joined in the same action. When a complaint, therefore, consists of two or more counts, and one sets forth a good cause of action and another does not, although it attempts to do so, the pleading is not demurrable on the ground of a misjoinder, even though the causes of action could not have been united had they been sufficiently and properly alleged.” Now, as it is conceded that the fifth paragraph of the complaint, in So far as it purports to state a cause of action against J. A. L. Wray, as guarantor — the seventh cause of action, as it is styled in the demurrer — does not state facts sufficient to constitute such a cause of action, we need not, under the rule above stated, consider whether such a cause of action could be joined with the other cause or causes of action set forth in the complaint.

Disregarding, then, the allegations of the fifth paragraph of the complaint, in so far as they purport to charge J. A. L. Wray, as guarantor, we are next to consider whether the other allegations of the complaint set forth causes of action which cannot properly be united. From the peculiar frame of this complaint, it is very difficult to understand precisely what causes of action the plaintiff intended to set forth in the complaint. It does not purport to be in the nature of a “creditor’s bill,” and does not contain such allegations as would be necessary to give it that character. If it could be so regarded, then, notwithstanding the requirement of the code (section 188), that the causes of action which may be united “must affect all the parties to the -action,” yet, as was held in State v. Foot, 27 S. C., at page 347, the complaint might be regarded as really stating but one cause of action, “arising from the right of the creditors to have the property of their debtor applied to the payment of their debts, which right has been invaded and sought to be defeated by the fraud of the debtor, participated in by the other defendants, in attempting to place his property beyond the reach of his creditors, or so entangling it with fraudulent claims as to offer serious obstructions to any attempt to reach it by the ordinary process of law” — citing Pomeroy on Remedies, section 349.

But, as we have said, this complaint cannot be regarded as in the nature of a creditor’s bill. The plaintiff has not yet established his claim against the principal or original debtor, E. G. Wray, and there is no allegation that it will be necessary to resort to the property alleged to have been fraudulently disposed of in order to secure the payment of such claim after it has been established. There is no allegation that E. G. Wray has assigned the whole even of his personal property, but only a specified portion thereof, and as to the land, the form in which that allegation is made seems to imply that he had other land in the County of Chester where he resided, for the allegation is that the tract referred to in the twelfth paragraph of the complaint is the only land which he owns ''in the said County of Fairfield.”

The inquiry, then, is, what causes of action does the complaint purport to state ? As we have said above, it seems to us that, so far as the several causes of action against the defendant, E. G. Wray, growing out of the six notes mentioned in the second paragraph of the complaint, are concerned, they are sufficiently stated, and there is no doubt that these several causes of action, arising as they do out of contract, may properly be united in the same complaint. But what are the causes of action attempted to be set out against the other defendants ? So far as we are able to understand the allegations of the complaint, it seems to us that the only other cause of action sought to be set out against the other defendants is that the plaintiff, by reason of false and fraudulent representations made by the defendants, J. A. L. Wray and C. P. Wray, to its agent, was induced to extend credit to E. G. Wray, which it would not otherwise have done, whereby the plaintiff has sustained damage to the amount of the indebtedness contracted by E. G. Wray. But inasmuch as we do not think that the complaint states facts sufficient to constitute such a cause of action, we need not, under the rule above stated, consider whether such a cause of action can properly be united with the several causes of action set out against E. G. Wray.

As to the second ground of demurrer, we do not think it can be sustained, for the reason that, as we construe the complaint, it does not seek to set aside the conveyance of the Fairfield land. Sufficient facts for that purpose are not stated in the complaint, and there is no prayer for such relief. Indeed, it is only incidentally, and we may say impliedly, stated that such a conveyance has been made, and the manifest purpose was to charge C. P. Wray with making false and fraudulent representations as to E. G. Wray’s interest in that land. We do not think, therefore, that this can be regarded as an action “for the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest,” and which must, therefore, be tried in the county where the land lies.

But, to avoid misapprehension, we may add that if it could be so regarded, the demurrer to so much of the complaint as set forth such cause of action would have been sustained. It differs from the case of Barrett v. Watts (13 S. C., 441) in this: there the action was to marshal the assets of the estate of Watts, which consisted of lands lying in Laurens and Abbeville Counties, and the estate being “the subject of the action,” parts of which lay in both of these counties, it was held that the action, including an issue as to the Abbeville land, could be tried in Laurens, under the express terms of the code, declaring that actions in the cases specified “must be tried in the county in which the subject of the action, or some part thereof, is situated,” inasmuch as a part of the subject of the action was situated in Laurens. Here, however, if the complaint could be regarded as stating a cause of action for the determination of the interest of E. G. Wray in the Fairfield land, the subject of such cause of action would be the land, and as it was situate in Fairfield County and no part of it in Chester County, where the action was instituted, the court in Chester would have no jurisdiction of such cause of action, but this would not involve a dismissal of the complaint. Rush v. Warren, 26 S. C., 72.

The only remaining inquiry is whether the Circuit Judge erred in omitting to allow the defendant, C. P. Wray, leave to answer, after overruling his demurrer. The Code, in section 193, provides that “after the decision of a demurrer, the court shall, unless it appear that the demurrer was interposed in bad faith or for purposes of delay, allow the party to plead over upon such terms as may be just.” Now, in this case it does not appear that the demurrer was interposed either in bad faith or for the purposes of delay, and hence, under the terms of the statute just quoted, the demurrant was entitled to plead over upon such terms as the Circuit Judge might, in his discretion, see proper to impose. Indeed, we suppose that the Circuit Judge was so well satisfied (as we are), that it would be necessary for the plaintiff to amend its complaint in order to effect the real purpose of the action, to which amended complaint all the defendants were granted leave to plead, he either overlooked the necessity of granting demur-rant leave to answer the original complaint, or deemed it unnecessary in view of the leave granted to plead to the amended complaint. Be that as it may, we think leave should have been granted to plead over, after overruling the demurrer, unless it had appeared to have been interposed either in bad faith or for the purposes of delay, which we do not think was the case. With this modification, we think the judgment below should be affirmed for the reasons above stated.

The judgment of this court is, that the judgment of the Circuit Court, as herein modified, be affirmed.