South Carolina Railroad v. Barrett

The opinion of the court was delivered by Willard, C. J. The action is in the nature of indebitatus assumpsit, for wrongful misconduct of the defendant, as the agent of the plaintiffs, in giving credit for freight on goods delivered to certain parties, in the place of demanding payment upon said delivery, as by the contract and duty of defendant as such agent, he was bound to do, and seeking to charge such amount against the defendant. The answer alleges that, at the time of the delivery of said goods, without demanding freight thereon, the plaintiffs were indebted to the parties to whom the goods were so delivered, in an amount exceeding the amount of freight due. The cause was referred by consent, and judgment was given for the plaintiffs. Certain exceptions to the rulings of the referee, that have been passed upon and overruled by the Circuit Court, are brought up by the present appeal. The defendant moved for a nonsuit, on the ground of a variance between the pleadings and the proofs. The facts out of which such exception arises are that, on the trial, the plaintiff offered in proof a bond, executed by the defendant with sureties, prior to the transactions stated in the complaint, conditioned for the due observance of the duties of his office as such agent, and stating the character of such duties. No objection appears to have been made to such proof on the part of the defendant, and it must be regarded as primarily the proof of the terms of contract between the parties relative to the matters alleged in the complaint. Whether the defendant could have, by his objection, excluded [175] the bond, or put the plaintiff to demanding an amendment of his complaint before introducing such proof, need not be considered, as no such objection appears to have been made. Having failed to object to the introduction in evidence of the bond, all objection on the ground of variance between the pleadings and proofs in that respect was waived, and that question could not be opened upon a motion for nonsuit. The only ground for a nonsuit was that the bond did not not set forth an agreement sufficient to constitute a cause of action, or that a breach thereof could not be legally inferred from the evidence; but no such ground of motion appears to have been presented to the referee. The defendant not having objected to the evidence, it was the duty of the referee to proceed with the hearing. S. P. Manufacturing Company v. Thew, 5 S. C. 10. Another objection is, that the referee permitted the plaintiff to amend by setting forth the bond in his complaint. It is not distinctly stated, but must be inferred, that this amendment was made after the hearing before the referee for the purpose of conforming the pleadings to the facts proved. . Such an amendment is allowed by Section 196 of the code, and is designed to meet the case of a variance between the pleadings and the proofs as a means of exhibiting on the record the issues actually tried, when there has been a departure of the proofs from the original pleadings. There was no error in allowing such amendment, nor was it necessary that such amendment should be made in order to enable plaintiffs to obtain judgment. The appeal should be dismissed. Haskell, A. J., concurred.