Bridges v. Daniel

114 S.E. 422, 121 S.C. 464, 1922 S.C. LEXIS 215

Opinions

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

One of the questions to be determined is ’whether the issues raised by the pleadings are legal or equitable in their nature.

The complaint, the answer, the report of the special referee, which was confirmed by the Circuit Court for the reasons therein stated, and the appellant’s exceptions on the appeal from the order of the Circuit Court will be reported.

1 In his report the special referee says:

“Counsel for the defense seem to think that this was a suit for specific performance, but I am inclined to the belief that it is. a mere money demand, brought to enforce the payment of Exhibit F, which is as follows: ‘September 20, 1920. I hereby agree to pay to Tom Bridges the amount I am due Bill Oglesby on or before December 1st, 1920, of the sum of seventy-five dollars discount. (Signed) Tom Bridges. R. A. Daniel.’ ”

The plaintiff had the right of election, either to bring an action to recover damages for breach of the contract, or to invoke the aid of the Court in the exercise of its chancery powers. Singleton v. Cuttino, 107 S. C., 465, 92 S. E., 1046.

2 Conceding that he elected to bring an action at law, to recover damages for breach of the contract, this did not prevent the defendant from invoking the aid of the Court in the exercise of its chancery powers, for the purpose of showing that the plaintiff was not entitled to relief on the law side of the Court. It seems that the special referee did not decide the equitable issues raised by the answer. This was error. He should have passed upon them. Under these circumstances, this Court will consider them in the first instance, but will remand the case for a new trial in accordance with these conclusions.

Reversed.

Mr. Justices Eraser and Marion concur.