majority">

The opinion of the court was delivered by

Mr. Chief Justice McIver.

On 19th December, 1872, Thomas W. Dewey filed his complaint against the above named defendants, to which Massey alone answered, Jones having made default. In this complaint the allegations, substantially, are that in January, 1869, the defendants applied to and obtained from Bryce & Co. a largo amount of plantation supplies, for the use of the plantation known as the Landsford place, in Chester County ; that upon an examination of the account for these supplies, made on or about the 2d day of May, 1871, it was ascertained that the balance due on said account was the sum of $5,660.35, for which 'defendants, by their agent, O. B. Jones, gave their promissory 'note in writing, whereby they promised to pay the said Bryce & Co. the said sum of $5,660.35 six months after the date, thereof; that said note, before maturity, was transferred to plaintiff; that no part of said note, nor the demand evidenced thereby, nor the account for which the same was given, has ever been paid. Wherefore the plaintiff demanded judgment for the said amount, with interest from the maturity of the note, together with expenses of protest.

On the 14th of November, 1873, the plaintiff, proposing to amend his complaint, served upon defendant’s attorneys a notice of a motion to amend the complaint, a copy of the proposed amended complaint accompanying the notice. Upon this paper the attorneys for defendant made the following endorsement: “I hereby acknowledge due service of a copy of the within complaint and of the above notice, endorsed November 14th, 1873.” It does not appear, and the fact is denied by defendant, that there ever was an}7 order granting plaintiff leave to amend the complaint. The cause remained upon the docket undisposed of until the '24th of September, 1882, when a paper styled a supplemental complaint was filed, in which all the allegations contained in the proposed amended complaint were incorporated, together with the allegations that the said Dewey had departed this life intestate, and that administration of his personal estate had been committed to the plaintiff', J. Y. Bryce, and also alleging that said plaintiff had thereby becotde the owner and holder of the *139note referred to in the original complaint, as well ns by purchase from the proper representatives of the estate of said Dewey, in the State of North Carolina, where said Dewey was domiciled.

Without undertaking to state all of the allegations in the amended complaint, which, as we have stated, were repeated in the supplemental complaint, it will be sufficient to state in general terms that these allegations seem designed to state as the cause of action the debt due for advances by Massey to Bryce & Co., which it was alleged was secured by a paper in the nature of a mortgage and agricultural lien (a copy of which will hereinafter be set out), and judgment was demanded, not only for the debt, but for the foreclosure of the alleged mortgage. To this alleged supplemental complaint the defendant Massey answered, raising many issues, amongst others, whether the so called supplemental complaint can properly be regarded as supplemental to the original complaint, inasmuch as it is claimed that the supplemental complaint is based upon a new cause of action, different from that stated in the original complaint, and pleading the statute of limitations to such alleged new cause of action; and also claiming that as the so-called supplemental complaint was not filed until after the expiration of more than ten years from the death of said Dewey, the lapse of such a length of time is a bar to any right to revive the original action against the defendant.

Upon these pleadings the case was presented to his honor, Judge Pressley, who granted an order on the 12th of March, 1887, referring all the issues to a referee, “all equities to be passed upon and reviewed by the court upon the coming in of the report.” Without- undertaking to state in detail the findings, either of the referee or the Circuit Judge, for which reference must be had to the report of the referee and the decree of the Circuit Judge, which should be incorporated in the report of this case, we will proceed at once to the -consideration of what we regard as the controlling questions in the case.

*1401 2*139The question which meets us at the outset is, whether the so-called supplemental complaint can be properly so regarded, or whether it must not be regarded as the commencement of a new action ; for if the latter, then the claim of the plaintiff is barred by the statute of limitations, and that would end the case; but *140if the former, then it is clear, and we understand it to be conceded, that the statute is not a bar. Without going into any inquiry as to whether the acknowledgment of service of a copy of the amended complaint by the attorney for Massey, without any protest or objection thereto, as appears by the endorsement thereon, copied above, from which it will appear that the attorney acknowledged ‘•'due service of a copy of the complaint,” as well as of the notice of the motion, did not operate as a waiver of any necessity for leave to file such amended complaint, it seems to us the supplemental com- . plaint was filed in time, and that it is properly supplemental to the original complaint, and is not based upon a new and different cause of action from that upon which the original complaint was based. First, as to whether the supplemental complaint was filed in time, we think it only necessary to refer to the cas'es of Parnell v. Maner (16 S. C., 350), and Best v. Sanders (22 Id., 589), to show that the plaintiff was not barred by lapse of time from filing his supplemental complaint. Next, as to whether it can be properly regarded as a proper supplement to the complaint in the original action. The cause of action in the original complaint was really the debt due for advances, and the note was used simply as evidence of the amount of such advances ; and, as it seems to us, the same cause of action constituted the basis of the supplemental complaint. Sibley v. Young, 26 S. C., 415. For this reason we think the supplemental complaint sufficient to revive and continue the original action, and, therefore, the plea of the statute of limitations must be overruled.

The paper referred to in the supplemental complaint as being in the nature of an agricultural lien and mortgage, is in the following form : “For provisions and merchandise to me furnished by J. Y. Bryce & Co., of Charlotte, N. 0., for the purpose of carrying on my own plantation in Lancaster District, and also my plantation, known as the Landsford place, by my'agent, not to exceed in value the sum of $10,000, I do hereby pledge and pawn to the said J. Y. Bryce & Co. all of my real and personal property, of every kind and description, including all the cotton and other produce raised on said plantations, and all other pro*141duce so raised, together with all of my stock of every kind and description, and all of my farming tools and implements. This lien to have priority over any other lien, mortgage, or conveyance by me made to any and all persons whatever. Given under my .hand and seal at Charlotte, N. 0., this 30th day of January, 1869. (In signing the aforementioned agreement I herein acknowledge the receipt of nineteen hundred dollars to me paid by J. Y. Bryce & Co. as an advance upon the Landsford place, and it is hereby understood that the advances of money or provisions must be controlled by the order of myself in writing.)” This paper was signed by Massey in the presence of one subscribing witness, and not under seal, after he had added in his own writing the words which we have placed in parentheses, beginning with the words “In signing" and ending with the words “in writing.” This paper will be referred to as “paper D,” it having been so designated in the referee’s report.

3 The addition made to the paper by Massey, whereby nothing could be advanced for the Landsford place except upon Massey’s written order, being unsatisfactory, the plaintiffs prepared and sent to Massey another paper, of which the following is a copy, after it had been signed by Massey: “Charlotte, February 1st, 1869. To Messrs. J. Y. Bryce & Co. Col. C. B. Jones being my authorized agent for the purchasing and procuring advances for the Landsford place, his orders will be duly honored (in so far as the Landsford interest may extend, in like manner as all advances which may have been made to me before this order was given ; that is, to the crops raised and stock and farming implements used on the Landsford plantation).” Before signing this paper Massey added the words which we have placed in parentheses, beginning with the words “in so far as” and ending with th.e words “Landsford plantation.” This paper will be referred to as paper “E,” it being so designated in the referee’s report. These two papers, the one manifestly designed to qualify the other, must be construed together and their meaning deduced from the terms used therein without the aid of any parol evidence, which was clearly incompetent, as the papers present no such ambiguity as may be explained by parol testimony. When two parties enter into an agreement in writ*142ing. their intention must be discovered from the terms which they have seen fit to use deliberately; and neither party can, by parol evidence, be-permitted to explain what was the real intention of the parties.

4 Our next inquiry is as to nature and effect of these papers. We do not see how it can be doubted that by the terms used in paper D, Bryce & Co. required, aiid Massey gave or intended to give, a lien upon all his property of every kind and description whatsoever and wherever located, including the crops to be raised on the two plantations mentioned, to secure the payment of any' advances which might be made to him. for the purpose of carrying on his own Lancaster plantation and also the Landsford place by his agent, to an amount not to exceed the sum of ¡¡510,000. This manifest intention is in no wise affected by the addition made to the paper by Massey, the plain object of which was simply to require that no advances should be made except upon his written order. Nor do we think that the intention of Massey to give a lien on all his property was in any way affected or qualified by the paper E, which will be more particularly considered presently.

5 Such being the plain intent of the parties, our next inquiry is whether such intent has been expressed in such form as would effect the object. It is objected that the paper D cannot be given the effect of a mortgage: 1st. Because it is not under seal and has but one subscribing witness. However valid such an objection might be if the rights of third persons were to be affected thereby, it can have no force as between the parties. It is an equitable mortgage, and may as such be enforced as between the parties. The next objection is that the property proposed to be covered by it is too indefinitely stated and described. To dispose of this objection it is only necessary to refer to the case of Lorick & Lowrance v. McCreery, 20 S. C., 424. It seems to us, therefore, that paper D must be regarded, as between the parties, as a mortgage upon all of Massey’s property, wherever it may' be located, to secure the payment of the amount it was intended to secure.

*1436*142We must therefore next proceed to inquire what was the amount which it was intended to secure. It is quite clear that *143the intention as originally expressed in paper D was that it should cover whatever advances might be made for the purpose of carrying on both of the plantations referred to, the Lancaster plantation and the Landsford place, provided the amount thereof should not exceed the sum of ten thousand dollars ; and provided also that such advances should be made only on the written order of Massey. Now, how has this paper been changed or modified by the paper designated as E ? It is very manifest that the main, if not the only, modification is to dispense with the necessity for Massey’s written orders, and to declare that the orders of the agent Jones would be honored, and the only question about which there can be any doubt is as to the effect of the additional words inserted by Massey in paper E after the word “honored.” Can these additional words be construed, as contended for by Massey, to so alter the original agreement as set forth in paper D as to entirely change, or rather release, him from any persona) liability under that paper, and leave the plaintiff nothing to look to for the payment of his debt but the crops raised on the Landsford place? Such a violent and radical change in the terms of the agreement, whereby its whole nature and effect would be so materially altered as to leave nothing but a shadow, cannot readily be presumed, and to be accepted should have been expressed in terms much more explicit than those which Massey employed.

What, then, was the purpose of the additional terms inserted by Massey ? It seems to us that the only object in adding those words was to confine Massey’s liability to such advances only as should be made for the Landsford place — “that is, to the crops raised and stock and farming implements used on the Landsford plantation.” Inasmuch as, under paper D, Massey was liable only for such advances as were made upon his orders in writing, he had it in his power to confine his agent Jones to such advances as would be necessary and proper to carry on the Lands-ford plantation, but when he was asked to sign paper E, dispensing with the necessity for his written orders, whereby his check upon his agent Jones would be lost, it was very natural that he should, before signing, insert something to serve as a substitute for the check on his agent which he was to give up, and there*144fore the additional words were inserted for the purpose of serving as such substitute, by declaring, in substance, that Jones’s orders would be duly honored, provided they were given for advances for the Landsford place — that is, to advances for the purpose of cultivating the crops and providing the stock and farming implements necessary to be used on the Landsford place. This, therefore, is the construction which we think should be put upon these two papers considered together, and hence Massey can be made liable to plaintiff only for such advances as were made to Jones for the use of the Landsford place. •

7 It is urged, however, that the liability of Massey must be confined to advances made during the year 1869, and hence that the referee erred in carrying the account for advances, the whole amount of which he finds were made for the Lands-ford place, beyond the end of the year 1869, as appears by exhibit X to referee’s report. It is true that the Circuit Judge, in ascertaining the amount for which he thinks Massey is liable, does confine the account to the year 1869, but he gives no reason for so doing, and we can conceive of no good reason for it. The paper by its terms does not so limit Massey’s liability, and although he testifies that he gave Bryce notice both orally and in writing (by letter) that the advances must stop at the end of the year 1869, this is emphatically contradicted by Bryce, whose version seems to have been adopted by the referee, and the Circuit Judge has made no finding as to this disputed fact. We cannot therefore say that the fact of such notice from Massey to Bryce has been established. But in the view which we shall next present as to what we regard as a limitation placed upon the liability of Massey, the question whether the advances were to be confined to the year 1869, may become an immaterial question.

8 It will be observed that by the terms of the paper D, Massey assumed a liability for advances made for the use of the Lancaster plantation, as well as for the Landsford place to an amount not exceeding the mm of ‡10,000, and we think that in order to ascertain the amount for which Massey is liable in this action, it will be necessary to ascertain the amount advanced for the use of the Lancaster plantation, which must be deducted from the sum of $10,000, and *145Massey should be charged only with the balance thus ascertained and credited with such amounts as the plaintiff may have received from the Landsford place, including the balance of $1,118.81 due to Jones by the plaintiff as the result of the operations of the year 1868, which both plaintiff and Jones have recognized as a proper credit on the account for advances for the Landsford place made under the terms of the paper D. For Massey, having limited his liability for advances made for the use of both places to the sum of ten thousand dollars, his liability for advances made to both places cannot be extended beyond that sum. The fact that Massey has already paid the amount of the advances made for the use of the Lancaster plantation cannot affect the question, for the plaintiff having received that amount, he cannot claim against Massey any more than the difference between that amount and the sum of ten thousand dollars, to which the liability qf Massey was expressly limited. But while the amount of the advances made for the use of the Landsford place has been ascertained by the report of the referee, as stated in exhibit X, we do not find anywhere in this voluminous record any statement of the amount advanced for the use of the Lancaster plantation under the terms of paper D, and hence the case must go back for the purpose of requiring the referee to ascertain such amount.

9 The defendant Massey, in his argument here, has made objection to sundry items charged by the referee as advances made for the use of the Landsford place in the account filed with his report as exhibit X, but as we do not find any exceptions to the report of the referee based upon such alleged erroneous charges, they cannot be considered here. The items mentioned in plaintiff’s 2nd and 3rd exceptions to the Circuit decree have already been charged in the account filed with the referee’s report, and hence there is no foundation for these exceptions. The claim for interest on these items cannot be sustained.

10 As to plaintiff’s fifth exception, it cannot be sustained, as there is no evidence that Jones ever had any authority to execute a negotiable note binding on Massey. At most the note could only serve as an admission by Jones of the balance due on the account for advances, which was subject to be corrected and has been corrected by the proof of the account.

*14611 As to the personal property on the Landsford place subject to the lien of plaintiff's equitable mortgage, alleged to have been “made way with” by Jones, we do not 'see how it could affect the question of Massey’s liability to plaintiff, unless it had been shown that plaintiff colluded with Jones in putting this property out of the reach of the mortgage, of which there is not a particle of evidence. All of the other exceptions, of both parties, are overruled as not sustained by the facts, or as disposed of by what has hereinbefore been said.

The judgment of this court is, that the judgment of the Circuit Court, in so far as it conflicts with the views herein presented, be reversed, in other respects that- it be affirmed; and that the case be remanded to the Circuit Court for such further proceedings as may be necessary to carry into effect the views herein announced.

Citation profile

How this case has been treated — in progress