McNeill v. Conyers

This action was commenced before a magistrate, in claim and delivery, for the possession of a mule and wagon.

The defendant answered the complaint, alleging that he and the plaintiff, in 1904, entered into a contract, whereby the plaintiff agreed to advance to him the sum of one hundred and forty dollars in supplies to be used in the cultivation of his crop during said year.

That the plaintiff refused to make the said advances, and thereby violated the contract, whereby the defendant suffered damages in the sum of one hundred dollars.

The testimony shows that it was provided in the contract that the plaintiff was to have a lien on the defendant's crops raised that year, and also a mortgage on the property in dispute; that on the 12th of March (the day on which the contract was executed), the plaintiff made advances to the defendant, to the amount of $26.25; that he made no other advances, but, on the 21st day of May thereafter, wrote to the defendant as follows: "I can not get you the fertilizer, also cannot furnish you, so you will please not depend on me."

The jury rendered a verdict in favor of the defendant, and the plaintiff appealed to the Circuit Court, which, upon hearing the exceptions, dismissed the appeal and affirmed the judgment of the magistrate; whereupon the plaintiff appealed to this Court.

The record fails to disclose the fact that the magistrate made any rulings whatever upon the requests to charge, as alleged in the exceptions.

The rule is well settled that statements of fact appearing alone in the exceptions can not be considered by this Court.

The respondent's attorney, however, has discussed two questions arising out of the requests to charge, which were presented by the plaintiff. We will, therefore, not decline to consider them.

The first request was as follows: "That the lien and mortgage put in evidence and marked exhibit A, from its terms gave J.T. McNeill the right to make any amount of advances to Preston Conyers that he saw fit, not exceeding the sum of one hundred and forty dollars. That the paper did not bind J.T. McNeill to make advances to the amount of one hundred and forty dollars, but the amount and kind, whether in money or supplies, was at the option of the said J.T. McNeill. In other words, McNeill had the right to advance one dollar or one hundred and forty dollars, just as he saw fit."

The part of the agreement which is material in considering this question is as follows:

"That the party of the first part agrees to make advances of money or supplies to the party of the second part, who is engaged in the cultivation of the soil on his own land, containing thirteen acres, and four acres on Charlie Welch's, joining W.T. Beard and Charlie Welch's farm, in said county and State, from time to time during the current year, to enable said party to make a crop thereon; said advances not to exceed the sum of one hundred and forty dollars, but the amount and kind thereof, whether in money or supplies, to be at the option of the party of the first part."

The contract must be construed, if possible, so as to make effectual the objects which the parties had in view, to wit: (1) to enable the lienee to make a crop during the year on his land; and (2) to secure to the lienor payment for advances made by him.

The words, "said advances not to exceed the sum of one hundred and forty dollars," were intended to impose upon the lienor an obligation to make advances to the amount of $140 (if so much was necessary to enable the lienee to make the crop).

If these words were not inserted in the lien for the purpose of specifying the amount of advances to be made by the lienor, then there was a failure to comply with the requirements of section 3059, Code of Laws, which provides that "an agreement in writing shall be entered into before such advances are made to this effect, in which shall be specified the amount to be advanced, or in which a limit shall be fixed, beyond which the advances, if made from time to time during the year, shall not go."

The words, "the amount and kind thereof, to be at the option of the party of the first part," do not mean that he had the right to advance one dollar or one hundred and forty dollars, as contended by the appellant; but they were intended to confer upon the lienor the option of advancing the one hundred and forty dollars, or so much as was necessary, in such amounts and of such kind, as he saw fit. Section 3059, Code of Laws.

This discretionary right, however, was not to be exercised capriciously, nor for the purpose of defeating the objects of the contract.

The exception raising this question should be overruled.

The second request was as follows: "That if they find from the evidence that the plaintiff made any advances under the lien on crop and mortgage offered in evidence, and that such advances, or any portion thereof, have not been paid, then the plaintiff would have a right to maintain this action for the possession of all or any of the property described in said lien and mortgage; and if the jury find from the evidence in this case that the mule and wagon that are the subject of this suit, are the same described in said lien and mortgage, then they must find for the plaintiff, if the jury find that there is anything due on said mortgage."

This request ignored the defense set up in the answer and the testimony introduced in support thereof.

Having allowed these allegations to remain in the pleadings, and having failed even to make a motion to exclude the testimony offered in support thereof, the appellant can not insist, as matter of right, upon a charge which ignored both the pleadings and the testimony. Martin v. Ry., 70 S.C. 8,48 S.E., 616; Milhous v. Ry., 72 S.C. 442,52 S.E., 41; Milhous v. Ry., 76 S.C. 492, 57 S.E., 474.

The exception presenting this question should also be overruled.

The question upon which the majority of the Court has reversed the judgment of the Circuit Court was not made an issue before the magistrate, nor is it presented by the exceptions.

For these reasons I dissent.