Southern Engine & Boiler Works v. Dicks

August 25, 1915. The opinion of the Court was delivered by This is an appeal from an order of Judge Sease confirming the report of the master of Barnwell county, to whom all issues of law and fact were referred to hear and determine the same and report to the Court.

The exceptions, twelve in number, allege error in finding of facts on the part of the master, concurred in by the trial Judge, and errors of law in permitting amendments; and holding that it was not necessary for the defendant to plead waiver or estoppel in pais of plaintiff, to raise objection that notice was not given as required by contract; and in holding that the plaintiff had waived the requirement that the notice of breach of warranty be given within thirty days, and in giving judgment for defendant against plaintiff for $150 on counterclaim. There was a concurring finding of facts by the master and Circuit Judge, and it is incumbent upon the appellant to show this Court that such finding was erroneous, and this appellant has failed to do. The master had the power to allow the amendment, it was within his discretion and could be allowed, even during the trial when it does not materially change the claim or defense so as to result in prejudice to the adverse party; and the party resisting the motion to amend must show by affidavit or otherwise to the satisfaction of the Court that he would be misled or surprised thereby to his prejudice. Koennecke v. SeaboardAir Line Railway, 101 S.C. 86, 85 S.E. 374. As to the admission of evidence under the pleadings the authorities cited by the master in his report sustain his conclusions fully. There was sufficient evidence to sustain his findings as to the counterclaim, and under the authority of the Williamson Heater Co. v. ThePaxville School District No. 19 et al., 102 S.C. 293, 86 S.E. — , such a recommendation was proper.

All exceptions are overruled. Judgment affirmed.