January 26, 1920. The opinion of the Court was delivered by This is an appeal from a decree made in the above case from his Honor, Judge Rice, on August 4, 1915. For an understanding of the case, the decree of his Honor should be reported. After entry of judgment, appellant appeals, and by 16 exceptions imputes error and seeks reversal.
Exceptions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16 are overruled. It is the duty of the appellant to satisfy this Court that the finding of fact by the Circuit Court is against the preponderance of the testimony. This appellant has failed to do, and we find no errors of law committed by his Honor, as complained of.
Exception 12 must be sustained.
Both the preliminary contract and final conveyance contained the provision that H.L. Scarborough should rent the mill site to the Sumter Company for a period of six years, at a rental of $150 per annum.
There is no allegation in the complaint that the Sumter Company failed to pay the rent or breached that portion of its contract. They paid the rent up to the time they shut down and abandoned the contract. That was sufficient to terminate the contract, and giving 30 days' note was unnecessary. The appellant was not put upon notice by the complaint that rent was asked, for the items of damages were for uncut timber, for punitive damages for tearing up of a tramroad, and no mention made of rent. While it it true that this Court has decided that the prayer of the complaint is no part of it, yet the complaint itself must allege fact sufficient to allow judgment in conformity *Page 204 to its allegation, and neither allegation of complaint or evidence in the case sustains his Honor's findings in this particular, and the decree of his Honor to this extent must be modified, and in all other particulars affirmed.
Modified.