May 13, 1924. The opinion of the Court was delivered by The allegations of the complaint in this action are most appropriate for the statement of a cause of action for breach of contract with fraudulent intent, yet, if the intention was to allege a tort, in view of the allegations of conspiracy, oppression, and false representations, I think that the complaint was sufficient for that purpose. It not being clear, therefore, whether the intention was to allege a single cause of action for breach of contract with fraudulent intent, or a single cause of action for a tort, or whether it was the intention to join the causes of action for both in the same action, there was no error in the Court's determining the intention before going on with the trial by requiring the defendant to state upon which theory he was proceeding. This was necessary in order for the trial Judge to properly instruct the jury as to the law governing the measure of damages and other elements involved. *Page 118
The appellant, when required to elect, went to trial upon the cause of action for breach of contract with fraudulent intent. It is evident that he also considered that a cause of action for a tort was stated, as the appellant's argument contains the following statement: "The above cited case shows that this is an action on tort." It is evident that the same view was held at the trial, and he cannot complain because he was given the privilege of determining whether he would proceed to trial on contract or tort. He should not have been allowed to proceed upon both theories. Mikellv. McCreery-Pressley Co.: 105 S.C. 25; 89 S.E. 467Jones v. McCreery Land Investment Co.: 82 S.C. 456;64 S.E. 225. If there were doubt as to the intention, the Court might, upon its own initiative or upon motion, have required an election.
The right to make a motion of this kind is clearly recognized in numerous decisions of this Court. It is affirmed in the recent case of Jumper v. DorchesterLumber Co., 119 S.C. 171; 111 S.E., 881. As to the time of making the motion, the only authority indicating the proper practice is Ruff v. Railroad Company, 42 S.C. 114;20 S.E., 27, where the following language is used:
"We know of no law or rule prescribing the time when such a motion should be made, except that, from the very nature of the motion it must be before the commencement of the trial, and here the motion was submitted before the trial had commenced."
In the present case the motion was made before the reading of the pleadings, which acquaints the Court and jury with the issues involved, and this was substantial compliance with the requirements laid down in the Ruff Case. Unless this case is to be overruled, I do not see how the conclusion can be escaped that the motion came in time.
A demurrer upon the ground of a misjoinder of causes of action in the complaint is an entirely different matter from a motion to require the plaintiff to *Page 119 elect upon which of two or more causes of action stated in his complaint he shall proceed to trial. If the demurrer should be sustained the complaint would be dismissed, unless leave should be granted to properly amend it. By a failure, however, to demur upon that ground the defendant will have waived the objection, and the causes of action improperly joined remain in the complaint, subject to the power of the Court upon motion to require the plaintiff to elect upon which cause of action he shall proceed to trial.
In fact, when two causes of action have been improperly united and remain in the complaint by reason of the defendant's failure to demur, it would be in the province of the presiding Judge upon his own motion, in the interest of an intelligent determination of each contest, to require one or the other to be first tried.
The effect of a pursuit of the remedy so elected upon the cause of action which remains in the complaint will depend upon an application of the principles of election of remedies set forth in the case of McMahan v. McMahon, 122 S.C. 336;115 S.E., 293; 26 A.L.R., 1925, which need not be repeated here.
I do not see how the defendant could be entitled to a new trial upon any view of the pleadings. If the complaint states a cause of action for breach of contract with fraudulent intent only, then the plaintiff has had a trial upon that issue in which he was allowed the fullest latitude in establishing his case, and the order of election, if erroneous, was clearly harmless. If the complaint states a cause of action for breach of contract with fraudulent intent, or for a tort, or for both, he was properly required to elect upon which cause of action he would proceed to trial.
As to the tenth exception, there are doubtless circumstances under which a bank could legally purchase the obligations of a debtor, even though to do so would increase the obligations of such a debtor to the bank beyond the limit fixed by law. To hold otherwise might prevent a *Page 120 bank from purchasing such obligations, not with any view of furnishing credit to a debtor, but entirely for its own protection. The statute (Civ. Code 1922, § 3999) refers specifically to liability for "money borrowed." The determining factor, I think, would be whether the transaction was for the benefit of the bank or was intended as an accommodation to the debtor. In this case there are allegations and evidence to support the theory that a new loan was to be made to the plaintiff covering the amount necessary to settle his mortgage indebtedness. Paragraphs 11, 13, and 14 of the complaint contain allegations that the defendant had agreed "to pay" the mortgages held by C.L. Kibler and others, and there are other allegations, and ample evidence, bearing out this construction. The Judge's charge covered this phase of the case, and correctly stated the law as to loans, and, if the plaintiff desired a modification, it should have been requested. I find no reversible error in the trial below, and the judgment should be affirmed, and it is so ordered.
MESSRS. JUSTICES COTHRAN and MARION concur.