This is certainly a case of novel procedure. It appears that on August 21, 1920, while the defendant was employed by the plaintiff in its repair shop, the plaintiff sold an automobile to the defendant for $675, $300 of which was paid in cash, and a note given for the balance, $375, payable 60 days after date. It is clear that the employment of the defendant was a moving consideration or inducement to the trade, for the manager of the plaintiff company testified that there was an agreement with the defendant that he was to pay so much per month on this note. The exact amount he did not remember.
"He was to pay me what he could each month, and I was to renew the balance, and there was no specified time in which settlement was to be made."
Before the maturity of the note the defendant had paid $100 on the note, whether out of his wages or not does not appear on the record. At a date not stated here, but subsequent to the execution of the note, the defendant left the employment of the plaintiff. On January 4, 1921, the plaintiff, *Page 515 without issuing a summons and complaint, upon an affidavit and bond procured an attachment to be issued and levied upon the automobile which had been sold by it to the defendant; the ground of the attachment being that the balance due upon the note, $275, represented the unpaid purchase price of the car, and "for fear that the said defendant may leave the State with the automobile, should attachment not issue against defendant."
Notwithstanding the fact that no summons and complaint had been issued, the defendant served upon counsel for plaintiff what purported to be an answer to the mythical complaint. The skeleton of this answer, set out on the record, as might be expected, is scantily attired. It contains a statement only of two alleged counterclaims and a plea of payment. The first counterclaim is for $100 on account of the alleged willful, malicious, and unlawful manner in which the seizure under attachment was made; the second is for $100 on account of the alleged willful malicious, and unlawful discharge of the defendant from the employment of the plaintiff. The plaintiff served no reply to this answer.
The case was called for trial before Hon. T.J. Mauldin, Circuit Judge, and a jury, April 18, 1922. The defendant, before the impaneling of the jury, called up the motion, of which notice had been previously and duly given, to dismiss the attachment. No specifications of the grounds of the motion appear on the record, other than that it was based "upon defect in the affidavit and defect in the bond." From the transcript of proceedings, and from the argument of appellant's counsel, it appears that the alleged defect in the affidavit was that the affidavit stated facts on information and belief, without stating the source of information as required by law, and the alleged defect in the bond was that it failed to state in the condition thereof:
"If the plaintiff failed to prove that the attachment is for the purchase money of the property in question, to wit, one Ford roadster." *Page 516
As to the alleged defect in the affidavit, the Circuit Judge held that it sufficiently alleged that the attachment was predicated upon the claim for the purchase price of the car and contained a direct statement to that effect; that the statement of a fear that the defendant may leave the State might be disregarded as surplusage, where the attachment was for the purchase price. The only statement in the affidavit relating to the purchase price, which might relieve the plaintiff from the rule requiring a statement of the sources of information is this:
"And plaintiff is desirous of attaching said automobile for the purchase money."
It is a close question, and I think that, taken in connection with the details of the sale of the car, contained in an earlier portion of the affidavit, it sufficiently appears that the attachment was issued for the purchase price. See Section 519, Code of 1922.
As to the alleged defect in the bond, the condition sufficiently shows that, if the plaintiff failed to prove that the attachment was issued for the purchase price of the automobile in question, the bond should be enforced.
After the Circuit Judge overruled the motion to dissolve the attachment, the trial minus summons and complaint, plus answer, and minus reply to the counterclaims, proceeded.
Having held the attachment valid, the Circuit Judge evidently concluded that the first counterclaim, for the tortious seizure, was out of the case, and took up the second counterclaim, the breach of the contract of employment. Before any testimony at all was offered the Circuit Judge ruled:
"I do not see that that (referring to the second counterclaim), has any connection here, and I don't see any use in burdening the Court with trying issues that the pleadings do not raise."
The plaintiff then offered one witness, its attorney, who testified to the loss and terms of the note, and another witness, who gave testimony in support of the plaintiff's case. Upon cross-examination, the last witness the manager of *Page 517 the plaintiff, testified as above stated in reference to the agreement between him and the defendant. The Circuit Judge excluded the testimony of this witness, sought to be adduced by the defendant, to the effect that he let him have the car on account of the fact that the defendant was going to work for him, and the payments made upon the note were to come out of his salary. The defendant offered no evidence, and the Circuit Judge, having ruled out both counterclaims, submitted to the jury the sole issue of the defendant's plea of payment. The jury found for the plaintiff the full amount claimed, and the defendant has appealed.
Waiving the suggestion that the plaintiff, not having replied to the first counterclaim, is not in a position to raise any objection to it, that counterclaim sounds in tort, and it seems that as such it is not appropriate in an action upon a contract. Lenhardt v. French, 57 S.C. 493;35 S.E., 761; Code of 1922, § 411. The second counterclaim, however, is based upon an alleged contract and was entirely proper. It is true that it is very imperfectly pleaded, but the plaintiff's remedy was to correct this by motion to make more definite and certain. Not having done so, he is not in a position to object to evidence tending to support its general statement.
I concur in the disposition of the other questions considered in the leading opinion; but it seems to me that, if the defendant can prove that the inducement to the purchase of the car was his continued employment by the plaintiff, supplying the source of expected payments, and that the plaintiff without just cause discharged him, threw him out of employment, and caused the sacrifice of his purchase, he is entitled to make that showing, and set off such damages as resulted from a breach of the contract against his liability on the note.
The Circuit Judge was entirely right in holding that parol evidence was inadmissible to alter the terms of the note.Stalnaker v. Tolbert, 121 S.C. 437; 114 S.E., 412. But that does not effect the question of a lawful contract of employment *Page 518 and its breach. In my opinion, the judgment below should be reversed, and the case remanded, with directions as follows:
(1) Within 10 days from the filing of the remittitur, let the plaintiff serve upon the defendant summons and complaint in due form.
(2) Let the defendant serve an answer thereto in 10 days thereafter.
(3) Let the plaintiff within 10 days thereafter reply to the counterclaim of the defendant.
(4) Let the attachment stand and the case be docketed on Calendar 1 for trial.
(5) Let the validity of the first counterclaim, which has not been argued, be reserved.