Haselden v. Hamer

March 23, 1917. The opinion of the Court was delivered by This is a second appeal. The first is to be found in 97 S.C. 178,81 S.E. 424.

The respondent in his argument says:

"This was originally an action instituted by the plaintiff against the defendant: (1) For an accounting; (2) for an order enjoining the defendant from interfering with plaintiff's possession of a certain house and lot; (3) for an order requiring defendant, upon payment by plaintiff of the amount found due by him, to transfer to plaintiff the stock mentioned in the complaint (mill stock) which had been pledged to defendant by plaintiff to secure certain sums of money borrowed."

In the first decree of the Circuit Court we find the following:

"If Hamer had sold the stock to pay the debt, that would have been an executed transaction. If Hamer had held the stock as security for the debt, that would have been his right. He did neither; he took the stock for himself; took it at his own price and allowed Haselden no surplus; in legal parlance he converted it."

In the judgment of this Court on appeal we find in 97 S.C. 184, 81 S.E. 42:

"So that as a matter of law the stock belonged to Haselden."

In 97 S.C. 185, 81 S.E. 426:

"Mr. Haselden is the equitable owner of the stock, and entitled to all credits from dividends arising thereon and otherwise, and the case will have to be remanded to the Court of Common Pleas for Dillon county for a restatement of the account on this basis. Mr. Hamer is entitled to his debt with interest."

After that decision, instead of taking the account on that basis, the plaintiff moved for, and was allowed, to file a supplemental complaint and charge that Hamer had converted the stock to his own use. A trial was had on the supplemental complaint, and, without any material change in the testimony, the Court of Common Pleas again found that Mr. Hamer had converted the stock to his own use. From the order allowing the supplemental complaint and the decree based thereon, the defendant has again appealed.

There are 17 exceptions, but the respondent in his argument has said:

"The question as to whether this matter is res adjudicata and if the supplemental complaint was proper both hang on the same proposition of law; for, if the plaintiff was obliged to sue for the conversion when he wanted the actual stock which was his and unlawfully detained by defendant, then to have filed a supplemental complaint was error for the reason that such matters as were alleged in said supplemental complaint had been adjudicated by this Court."

There is, indeed, but one question in this case. Is the matter of "conversion" res adjudicata? It is res adjudicata.

In the first Circuit decree it was held that the stock that had been Haselden's had become the stock of Hamer. That change of ownership was called "conversion." When this Court held as a matter of law that there had been no change of ownership, it followed inevitably that there had been no conversion. When this Court said, "even if there was a conversion," the parenthetical clause "but there was not" was clearly to be understood. The facts found were wholly inconsistent with a conversion, as set forth in the first Circuit decree. The status was finally determined in the first appeal, and the case remanded for the purpose of a restatement of the accounts.

The order allowing the supplemental complaint and the Circuit decree based thereon are both reversed.

Mr. Hamer offers the new stock in the consolidated mills for his old stock. With this exception (the choice of stock), the case is remanded to the Court of Common Pleas to carry out the former order of this Court.

MR. CHIEF JUSTICE GARY and MR. JUSTICE HYDRICK concur in the opinion of the Court.