Hall v. Woodward

The opinion of the court was delivered by Mr. Justice McIver. The plaintiff brings this action as assignee of his father, Daniel Hall, sr., against the defendant, Woodward, to recover one-half of the amount paid by. him in satisfaction of a judgment which had been recovered against Daniel Hall, sr., on a note, upon which it is alleged he and Woodward were joint sureties. In his original answer the defendant raised no issue, either as to the execution of said note by him, or as to the fact that he and Daniel Hall, sr., were co-sureties on said note, but rested his defence upon other grounds, one of which was that the note was presumed paid as to him by lapse of time before the judgment was paid by the plaintiff herein. At the first trial the Circuit Judge, without considering any of the other defences, sustained the plea of payment presumed from lapse of time, and upon that ground alone rendered judgment dismissing the complaint. From that judgment the plaintiff appealed, and this court reversed the judgment and remanded the case for a new trial. See the case as reported, 26 S. C., 557. — 573 — As soon as the remittitur was sent down, and before the next succeeding term of the Court of Common Pleas, the defendant gave notice that he would move to amend his answer by substituting in place of the answer originally filed another answer, a copy of which, together with certain affidavits set out in the “Case,” was served with the notice of the motion. Upon these papers, as well as certain affidavits submitted by plaintiff, likewise set out in the “Case,” the motion was heard and granted by Judge Wallace. From the order granting this motion, the plaintiff gave due notice of appeal, but by an arrangement between the parties the hearing of this appeal was suspended until the final disposition of the case on the merits. In pursuance of this arrangement the case was heard on the merits by Judge Witherspoon at the next term of the court upon the pleadings as amended. The amended answer purports to put in issue both the fact of the execution of the note by Woodward and the fact of his co-suretyship with Daniel Hall, sr., by denying any knowledge or information sufficient to form a belief as to either of these facts. Judge Witherspoon finding, as matter of fact, that the plaintiff had failed to show by a preponderance of evidence either the execution of the note or that he and Daniel Hall, sr., were co-sureties thereon, rendered judgment that the complaint be dismissed, with certain provisions as to the costs, which need not be stated, as there is no controversy here in reference to that portion of the judgment. From this judgment plaintiff also appeals upon the several grounds set out in the record. We will first consider the appeal from Judge Wallace’s order granting leave to substitute the amended answer for the one originally filed. The first exception to this order is that the issues sought to be raised by the amended answer were res adjudieata by the former decision in this case. These issues were as to the execution of the note by Woodwai’d and the fact of his co-surety-ship with Daniel Hall, sr. As it is quite clear that no such issues were presented by the pleadings at the former trial, it is difficult to conceive how they can be regarded as res adjudieata. Neither the Circuit nor Supreme Court was called upon to determine anything whatever in regard to these facts, and — 574 — accordingly, so far from undertaking to do so, both the Circuit Judge and this court expressly said that the only question to be considered was whether the plea of payment, resting on the presumption arising from lapse of time, could be sustained, and it is quite manifest that that was the only issue considered or determined. The second exception to the order is that the Circuit Judge erred in holding that the proposed amendment was in furtherance of justice. Ordinarily, motions to amend are addressed to the discretion of the Circuit Court, and whether a proposed amendment is in furtherance of justice, is a matter to be determined by that court upon a review of all the circumstances. The consideration so earnestly urged that the plaintiff, by the death of witnesses, was put at a disadvantage, was a very proper matter to be considered by the Circuit Judge, and no doubt it was allowed by his honor all due weight; but it was not conclusive or controlling. The third exception is that the motion to amend was improperly granted, because, by the proposed amendment, the defendant is allowed to change his defence. Section 194 of the Code reads as follows: “The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case ; or, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved.” It is very obvious that the power of amendment conferred by this section is very broad, though not entirely unlimited; and the appellant, by this exception, contends that one of these limitations is that “the claim or defence” shall not be substantially changed by an amendment. It seems to us, however, that this limitation applies only to cases where an amendment is applied for during or after the trial. This is shown by the language used in the latter part of the section where the limitation is found — “by conforming the pleading or proceeding to the facts proved?’ — showing clearly that it is — 575 — confined to applications for amendment during or after the trial; for then only could it be ascertained what facts were proved, to which the pleading can be made to conform. The reason for the distinction is manifest; for where a party has come prepared to meet a certain claim or defence, it would be clearly unjust to permit such claim or defence to be changed substantially in the midst of the trial, or after it was concluded, though there would be no injustice in permitting an amendment which made no substantial change in the claim or defence, but simply supplied some formal matter, which did not go to the merits of the issue which "has been, or is being, tried. But this would not apply to an amendment made before trial; for there the amendment can operate no surprise,_as the other party, if he moves for it, can always obtain time to answer such amendment. See Cleveland v. Cohrs, 13 S. C., 397; Coleman v. Heller, Ibid., 491. Where, however, the amendment is applied for during or after the trial, in order to confovm the pleadings to the facts proved, as in Trumbo v. Finley (18 S. C., 316), and Dunsford v. Brown (19 Id., 567), no opportunity can be afforded the other party to meet the claim or defence as changed by the amendment, and hence there is eminent propriety in such cases in prohibiting an amendment which, changes substantially the claim or defence. If any authority be needed to sustain -this construction of section 194 of the Code, it may be found in the cases cited in the argument of Mr. Obear, one of the counsel for respondent.1 This construction of the code has been acted upon by this court in several cases. Amongst others, see Mason v. Johnson, 13 S. C., 21; Cleveland v. Cohrs, Ibid., 397; and Nesbitt v. Cavender, 27 Id., 1, in "which last named case tins court, after ordering a new trial, granted leave to the plaintiff to amend his complaint so as to raise a new issue. In this case the leave to amend was granted, not only before the trial, but at the preceding term — 576 — of the court, and could not, therefore, operate as any surprise to the plaintiff. The fourth exception is based upon the ground, that the proposed amended answer “is frivolous, evasive, and insufficient.” That it is not frivolous or evasive, is shown by the fact that it presents two issues — one as to the execution of the note, and the other as to the fact of co-suretyship — which were essential to the maintenance of the plaintiff’s case; and in view of the fact that both of those issues have been determined adversely to the plaintiff’ by the Circuit Court after a full hearing, we certainly cannot say that the allegations upon which they rest were manifestly untrue. As to the insufficiency of the answer, there is no specific statement in the exceptions as to the ground upon which it is alleged to be insufficient; and under a strict practice, we would be justified in disregarding this branch of the exception. But as we have been able to gather from the argument in what respect the answer is supposed to be insufficient, we.will not decline to consider the question. As we understand it, the ground upon which the answer is claimed to be insufficient, is that it simply denies any knowledge or information sufficient to form a belief as to whether defendant executed the note, and that such a denial is insufficient to present an issue as to the execution of a written instrument. This may be true, as a general proposition, where the instrument is accessible; for the Code, proceeding upon the theory that mere formal proof should be dispensed with, and the parties brought to the real issues involved, does not permit a denial of knowledge or information sufficient to form a belief as to the existence of a fact, the truth of which can be readily ascertained, as, for example, a record in a public office, or any other writing to which the party can gain access, to be regarded as sufficient to raise an issue. But to apply this rule to such a case as this, would be a perversion of its true object and real design. Here, the note has been lost for some nineteen or twenty years, and the defendant not having any opportunity to examine it, and it not having been brought to his attention for more than twenty years, we do not see how he could truthfully say more than he has done. But we — 577 — need not say more upon this point, as the question is concluded by the case of Savings Bank v. Strother, 22 S. C., 552. The fifth exception imputes error to Judge Wallace in not holding that the defendant was estopped by his conduct from denying either that he had signed the note, or that he and Daniel Hall, sr., were co-sureties. We are unable to find any evidence in the conduct of the defendant which would raise such an estoppel. He certainly never said or did anything calculated to induce the plaintiff to make the payment on the judgment; for, so far from admitting his own liability, he constantly denied it. The fact that he did not place his denial upon the distinct ground that he had never signed the note, or that he and Daniel Hall, sr., were co-sureties, cannot affect the question. It seems to us that the whole conduct and conversation of the defendant, instead of encouraging the plaintiff to make the payment, should have had precisely the contrary effect. He certainly never admitted his liability, and never admitted signing the note or the fact of cosuretyship, until he filed his original answer, which being long after the plaintiff made the payment, could not possibly have induced such payment. The utmost that can be said is, that the defendant never denied signing the note or the fact of his cosuretyship ; and we do not see that he was under any obligation, either legal or moral, to make such denial until called upon by proper authority. It seems to us, therefore, that none of the exceptions to Judge Wallace’s order can be sustained. We come, next, to the appeal from Judge Witherspoon’s decree. The second, third, seventh, and eighth exceptions to this decree have already been disposed of in considering the appeal from Judge Wallace’s order. The first, fourth, sixth, and tenth exceptions simply impute error in matters of fact. The fifth and ninth exceptions raise questions as to the competency and effect of certain documentary evidence. First, as to the questions of fact. Under the well settled rule of this court, the appellant must show either that the findings of fact in the court below are without any testimony to support them, or are manifestly against the -weight of the testimony; and this, we think, he has failed to do. It was essential to the plaintiff’s — 578 — ease to show affirmatively, not merely that defendant executed the note, but that he and Daniel Hall, sr., were co-sureties. When he introduced in evidence the defendant’s original answer, admitting these facts, which, we think, was competent evidence, just as any other written or verbal admission made by defendant, he made out a prima facie case, which threw the burden of proof upon the defendant to rebut or explain such admissions, and Judge Witherspoon very properly gave the plaintiff the benefit of this view. As we have said, this original answer was competent evidence, just as a letter or any other writing signed by the defendant would have been, but it was not conclusive of the facts therein stated. If it had remained as a part of the pleading, then it would have been an admission of record and conclusive. But when it was “sponged out” as a part of the pleading — to use the expression found in some of the cases — it lost its conclusive character, and stood like any other written or verbal admission which the defendant may have made, open to explanation; and the Circuit Judge has found as matter of fact, that this admission has been explained away — that it was made unadvisedly, and with no intention to admit the fact that the note was signed by the defendant as a co-surety with Daniel Hall, sr., and, under the rule, we cannot say that the Circuit Judge has erred in such finding. On the contrary, all the circumstances would seem to indicate that he reached a correct conclusion. Without the admissions found in the original answer, it seems to us that there is absolutely no evidence that defendant and Hall were co-sureties, and very little, if any at all, that defendant ever signed the note. We do not deem it necessary, nor is it usual, to go into a detailed examination of the testimony for the purpose of supporting a finding of fact by the Circuit Judge, as his decree is sufficient to vindicate itself. The only remaining inquiry is, whether the Circuit Judge erred in his rulings as to the competency and effect of the documentary evidence referred to in the.fifth and ninth exceptions. The defendant was not a party to the record in Mobley v. Hall, and nothing contained in that record was competent evidence against him; and the same may be said of the copy of the note found in Col. Rion’s law office, no matter what the purpose may — 579 — have been in offering it in evidence. The facts essential to the plaintiff’s recovery were, that defendant had executed the note, and that he and Daniel Hall, sr., wore co sureties, and nothing in those papers could legally tend to establish those facts. The judgment of this court is, that the judgment of the Circuit Court be affirmed. Footnotes [1] The cases cited by Mr. Obear upon this point are to be found reported as follows: 11 How. Prac., 170; 7 J. & Sp. (N. Y.), 277; 21 S. C., 241; 7 How. Prac., 294; 3 Abb. Prac., 86; 51 Barb., 629; 53 Id., 571; 3 Abb. Prac. (N. S.), 359; 49 N. Y., 80; 4 Wait Prac., 661; 13 S. C., 21, 495; 20 Id., 522. — Reporter.