Opinion
14793
December 15, 1938.
Before SEASE, J., Spartanburg, January, 1938. Affirmed.
Action by W.M. Wilson, as executor of the last will and testament of G. DeFoix Wilson, deceased, against L.I. Gregory, for breach of contract to purchase shares of corporate stock. From an order granting plaintiff's motion for leave to amend his complaint, the defendant appeals.
Order of Judge Sease follows:
This matter came on before me to be heard upon the plaintiff's motion for leave to amend his complaint.
The plaintiff alleged in his complaint that on the 29th day of December, 1930, he contracted to sell and the defendant to buy 50 shares of corporate stock for $5,500.00, the contract being in writing; that title to the stock thereupon vested in the defendant, entitling the plaintiff to recover the full purchase price, with interest from the date of the contract. The defendant answered, setting up a general denial and denying that title had passed to him. The plaintiff now seeks to amend his complaint by eliminating the allegation that title to the stock had vested in the defendant and seeking to recover not the entire purchase price, but the difference between that price and the market price at the time and place of delivery, with interest. The case has not been tried.
Section 494 of the Code (1932), governing amendments by the Court, provides: "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 defense, by conforming the pleading or proceeding to the facts proved."
In my opinion, the amendment is in furtherance of justice, and is one that, in the exercise of my discretion, I should allow.
For breach of such a contract as that set out in the complaint, there is a choice of three remedies available to the other party. He may:
1. Store or retain the property for the purchaser, and sue him for the entire price.
2. Sell the property and sue for the difference between the contract price and the price obtained at the resale.
3. Keep the property as his own and sue for the difference between the market price at the time and place of delivery and the contract price. Heller, Hirsh Co. v. Charleston Phosphate Co., 28 S.C. 224, 5 S.E., 611.
The plaintiff chose the first remedy and based his complaint on it. Now, he seeks to amend by abandoning the first remedy and relying on the third.
The defendant says that the amendment should not be allowed, for by it the plaintiff seeks to set up a wholly new cause of action, when a new cause of action for the same recovery would be barred by the Statute of Limitations. I think this position is untenable.
The proposed amendment would not set up a new cause of action. A cause of action is "a legal wrong threatened or committed against the complaining party." Ophuls Hill v. Carolina Ice Fuel Co., 160 S.C. 441, 158 S.E., 824, 827; State of South Carolina ex rel. State Highway Dept. v. Piedmont N. Ry. Co., 186 S.C. 44, 194 S.E., 631. In the latter case, the plaintiff's cause of action was said by the Supreme Court to be [page 633] "the defendant's refusal to pay the share of the cost of construction of the bridge which plaintiff claims to be due it under the provisions of the statute." So here, the plaintiff's cause of action is the defendant's refusal to accept and pay for the stock. The proposed amendment would not change the cause of action. It merely seeks another remedy on the same cause of action, and at most changes the theory of the cause. The limitation that an amendment must not substantially change the claim or defense applies only to amendments asked for during or after trial. J.B. Colt Co. v. Kyzer, 131 S.C. 78, 126 S.E., 520. It, therefore, is not applicable here.
The Circuit Court's authority to allow amendments came before the Supreme Court recently in the case of Blackwood v. Spartanburg Commandery No. 3, Knights Templar et al., 185 S.C. 56, 193 S.E., 195. There the plaintiff alleged that the defendant Commandery was a corporation and as such made a note on which the appellants were endorsers. The appellants set up lack of presentment and notice. Thereafter, more than six years after the accrual of the plaintiff's cause of action, she sought to amend by alleging that the Commandery was an unincorporated association, and the appellants, as members thereof, were liable on the note as makers. The appellants opposed the amendments on the ground that it would permit the plaintiff to sue "on a cause of action essentially and in principle different from and in addition to that alleged in the complaint, thereby permitting by way of an amendment, after the statute of limitations had expired, a suit against the appealing defendants on an entirely different basis from that on which recovery was sought in the original complaint, and thereby denying them a defense under the statute of limitations." [page 196.]
The Supreme Court sustained the Circuit Court's order allowing the amendment. The principle here involved is the same. In the exercise of my discretion, it appearing that the amendment would be in furtherance of justice, I allow the amendment.
Wherefore, upon motion of Evans, Galbraith Holcombe, attorneys for the plaintiff, it is ordered that the plaintiff have leave to amend his complaint in the particulars set out in his written notice; that a complaint so amended be served on the defendant within five days from the date of entry of this order, and that the defendant have twenty days after such service, exclusive of the date thereof, within which to answer or otherwise plead to the amended complaint.
Mr. Donald Russell, for appellant, cites: Amendment of complaint to stop running of statute of limitations: 183 S.C. 478; 141 S.E., 337; 161 S.C. 21; 159 S.E., 457; 43 S.C. 225; 21 S.E., 10; 32 S.C. 142; 10 S.E., 932; 95 F., 305; 275 F. 285; 116 S.W. 519; 113 N.W., 408; 13 L.R.A., (N.S.), 250; 36 So., 707; 101 A.S.R., 52; 158 U.S. 285; 39 L.Ed., 983; 48 N.E., 826; 115 S.C. 426; 106 S.E., 167.
Messrs. Evans, Galbraith Holcombe, for respondent, cite: Statute of limitations: 30 S.C. 564; 9 S.E., 684; 68 S.C. 506; 47 S.E., 711; 81 S.C. 574; 62 S.E., 1113; 131 S.C. 78; 126 S.E., 520; 13 S .C., 397; 18 S.C. 316; 19 S.C. 567. Amendment: 105 S.C. 317; 89 S.E., 1067; 185 S.C. 56; 193 S.E., 195. Cause of action defined: 153 S.C. 43; 150 S.E., 316; 68 A.L.R., 443; 160 S.C. 441; 158 S.E., 824; 186 S.C. 49; 194 S.E., 631. Allowing amendments discretionary: 3 Hill, 195; 7 Rich, 431; 74 S.C. 236; 54 S.E., 375; 85 S.C. 259; 67 S.E., 295; 103 S.C. 214; 87 S.E., 999; 107 S.C. 81; 91 S.E., 987; 109 S.C. 285; 96 S.E., 118; 130 S.C. 521; 126 S.E., 649; 155 S.C. 370; 152 S.E., 512; 158 S.C. 411; 155 S.E., 734; 160 S.C. 307; 158 S.E., 258; 162 S.C. 87; 160 S.E., 149; 174 S.C. 49; 176 S.E., 866.
December 15, 1938.
In his order allowing the plaintiff to amend his complaint, the Circuit Judge sufficiently states the nature of the controversy and the issues involved. The defendant contends (1) that the complaint, as amended, states a new cause of action, and (2) that such cause of action is barred by the statute of limitations.
Under the facts shown, if appellant's first contention is right, then his second must be sustained. As stated in Coral Gables v. Palmetto Brick Co., 183 S.C. 478, 191 S.E., 337, 341, "an amendment of a complaint will not be allowed if a wholly new cause of action is thereby introduced where the new cause of action is so old as to have been barred by the statute of limitations. In other words, an amendment which substitutes a new and different cause of action, and debars the defendant of the privilege of pleading the statute of limitations, will not be allowed."
The respondent argues, however, that "the amended complaint does not set up a new cause of action, but seeks only a different remedy on the original cause of action," which the Circuit Judge could properly allow by amendment. In Heller, Hirsh Co. v. Phosphate Co., 28 S.C. 224, 5 S.E., 611, the Court said [page 614]: "As we understand it, in such cases the vendor has a choice of one of three remedies: (1) He may store or retain the property for the vendee, and sue him for the entire price; (2) he may sell the property, and recover the difference between the contract price and the price obtained at the resale; (3) he may keep the property as his own, and recover the difference between the market price at the time and place of delivery and the contract price."
We think the above cited decision supports plaintiff's contention, namely, that the amendment allowed did no more than substitute a new and different remedy from that which was relied upon in the original complaint. This appearing to be true, it is clear that such amendment does not set up a new cause of action, for the reason that a cause of action and the remedy sought are entirely different matters. See Emory v. Hazard Powder Co., 22 S.C. 476, 53 Am. Rep., 730, where this Court held that the cause of action and the remedy "are separate and distinct from each other, and are governed by different rules and principles." The Court there goes on to say that "it is true, that the motive which prompts the action is a desire for relief, and to obtain this relief is the object of the action, and in this sense the relief sought is the cause of the action; but this is not the legal sense of the phrase `cause of action.' On the contrary, that sense is as stated above; i.e., a breach of one's legal rights."
Finding no abuse of discretion on the part of the Circuit Judge in allowing the amendment, we approve, for the reasons above stated, the order issued by him. See Ebner v. Haverty Furniture Co., 138 S.C. 74, 136 S.E., 19.
We find that the respondent admits in the agreed statement of fact that the order allowed the plaintiff to amend his complaint "so as to change his cause of action." Generally, a statement of this kind would be binding upon the party agreeing to it. However, an examination of the Court's order discloses that the Circuit Judge held to the contrary, to wit, that "the proposed amendment did not set up a new cause of action." We conclude, therefore, that this statement was inadvertently made and agreed to by counsel.
The circuit decree, which will be reported, is affirmed.
MR. JUSTICE CARTER did not participate on account of illness.