Nash v. Woodward , 62 S.C. 418 ( 1902 )

February 18, 1902. The opinion of the Court was delivered by This action was brought by Shepard Nash, as administrator of Mrs. Nancy Woodward (who died in July, 1899), against the defendant, for an accounting as agent of Mrs. Nancy Woodward. The complaint, omitting the formal parts thereof, is as follows:

"Second. That the defendant was one of the sons of the intestate, Mrs. Nancy Woodward, and for many years previous to her death, as plaintiff is informed and believes, was her confidential agent, and had the control and management of all her business and property, both real and personal.

"Third. That plaintiff is informed and believes that the intestate was entitled to a valuable life estate in a tract of land, and that the said defendant, as her agent, received the rents and profits of the said land from the first day of January, 1895, to the day of December, 1899; that the said land rented for six bales of cotton per annum, amounting to $180 per annum, which sum and interest this defendant has failed to account for and pay over. That there came into his possession, as such agent, the following notes, to wit: one of Henry Woodward, for the sum of $231 and interest; one of Wesley Stuckey, for the sum of $400 and interest, and two notes of the defendant, J. Frierson Woodward, for the sum of $350, and one for the sum of $150, with interest, all of which notes it was the duty of the defendant, J. Frierson Woodward, as such agent, to collect or renew; that the said J. Frierson Woodward thus allowed said notes to go out of date * * * That the defendant also received the sum of $80 for certain timber of the said Mrs. Nancy Woodward and sold by him as such agent."

The issues raised by the pleadings will be seen by reference to the report of the master, which will be reported. His Honor, the Circuit Judge, by a formal order, confirmed the report of the master in all respects except as to the rent contract, which in his judgment was for six bales of cotton per annum and not for five bales, as found by the master. Both the plaintiff and the defendant have appealed from said order.

The defendant's exceptions are quite numerous, but it will not be necessary to consider them in detail. We will first consider whether the Circuit Judge erred in finding that the defendant entered into an agreement to deliver six bales of cotton as rent instead of five bales, as found by the master. The burden is upon the appellant to show by the preponderance of evidence that the finding of the Circuit Judge was erroneous. We agree with the master that the testimony on this point is about equally balanced, and are of opinion that the appellant has failed to show by the preponderance that the Circuit Judge was in error.

We proceed next to consider whether there was error in the ruling that the plaintiff was entitled to a recovery on the note called a "due bill," which was as follows: "Bishopville, S.C. Nov. 27, `92. On demand I promise to pay Mrs. Nancy Woodward three hundred and fifty ($350) dollars, without interest. J.F. Woodward." The right of action on this note did not accrue until there was a demand, which it seems was not made during Mrs. Woodward's lifetime. It was, therefore, not barred by the statute of limitations, and it was not error to render judgment thereon.

The next question that will be considered is whether the Circuit Judge erred in his ruling as to the other notes. After careful study of the testimony we have reached the conclusion that the testimony fails to sustain the allegations of the complaint as to these notes, and that they must be excluded from plaintiff's recovery. These conclusions practically dispose of all the questions presented by the defendant's exceptions.

The plaintiff has appealed upon the following exceptions: "Because his Honor erred in overruling the plaintiff's first exception, which was as follows: `Because the master erred in not allowing the plaintiff to amend his complaint by conforming the pleadings to the facts proved, and allowing the plaintiff to allege the payments on the note as of the year 1895.'" The testimony does not show that any payments were made at that time. It is true, the account of the defendant against Mrs. Woodward in that year exceeded the amount he was then due her as rent, but this cannot be construed as a payment on the notes. There would, therefore, have been no practical benefit in allowing the amendment.

It is the judgment of this Court, that the judgment of the Circuit Court, except as herein modified, be affirmed.