dissenting. It seems to me that the material questions raised by this appeal have been decided by the conclusions reached under the former appeal in this case, reported in 39 S. C., 281, adversely to the result reached in the opinion prepared by Mr. Justice Pope under the present appeal, and, therefore, I cannot concur in such result. Time will not permit any extended discussion of the several points presented by this appeal, and hence I must content myself with simply indicating, very briefly, some of my reasons for dissenting.
. Under the former appeal, it was held that it was not competent to introduce parol testimony to show that the paper offered in evidence — the certificate of deposit — constituting the evidence of the contract which constituted the basis of plaintiff’s action, was really intended to bind the defendant bank. In the former opinion, the following language is used: “It is quite clear that the terms of this paper not only do not imply, but expressly repel, the idea that the chartered bank was in any way bound thereby, or in any way referred to therein. On the contrary, the paper, in express terms, refers to and purports to bind a totally different person, for, in law, Iredell, as manager of the partnership bank, or as manager of the Depositors’ Cooperative Association, and as president of the chartered bank, are entirely distinct and different persons. So that even if it should he coneeded that Iredell, as president of the chartered hank, had the power to hind the hank hy such a paper as this [italics mine], (a concession which I am not now prepared to make), *545there is nothing whatever, either in the body of the paper or in its signature, to which alone we can look, which shows that he attempted or intended to exercise such a power.” Then follows a quotation from Greenlf. on Evidence, which it seems to me is very appropriate to the present inquiry, but which need not be repeated here, as it is set forth in the former opinion.
It is true, that it was said in the former opinion that it was “very possible that if the parol testimony in question had been offered to show of what, or for whom, O. J. Iredell was manager,” it would have been competent; and although that view was expressed as possible only, yet I am free to confess that I, then, was very much inclined to adopt that view; but I must add that subsequent investigation and reflection has tended to shake my confidence in such view, as there is nothing whatever on the face of the paper even to suggest that the defendant bank may have had some connection with it — not even the appearance of the name of such bank written or printed on the margin. Inasmuch, however, as there was no evidence whatever in the case tending to show that Iredell ever in a single instance signed his name as “manager” of the defendant bank, or was ever known or regarded as such, while, on the contrary, there was evidence that he was so known and regarded in conducting the affairs of the partnership bank, and was in the habit of signing certificates of deposit made with the partnership bank, as well as with the Depositors’ Co-operative Association, “0. J. Iredell, Manager,” the question whether it was competent to offer parol evidence to show for whom, or of what, Iredell was manager, becomes an immaterial inquiry, as there it no evidence which could give rise to such an inquiry. Indeed, the undisputed fact appearing in the testimony that while the defendant bank, when it first went into operation, used some of the blank certificates of deposit prepared for the partnership bank, with the word “manager” printed at the bottom, but with that word erased or written over with the word “president,” conclusively shows that Iredell, when acting for the defendant bank, did not style himself “manager,” but president.
It is contended, however, that the case presents itself in an *546entirely different aspect from that which it wore at the first trial, by reason of the amendment to the complaint made since the former decision of this court, whereby fraud is distinctly charged, in that the plaintiff was induced to accept the paper, the certificate of deposit, in its present form, by the fraudulent misrepresentations of Iredell. Conceding for the purpose of this inquiry that these additional allegations in the amended complaint are true, then, it seems to me, that the plaintiff states a case for the reformation of the instrument evidencing the contract for the breach of which he brings his action, so as to express the real intent and terms of such contract, and such a case is within the exclusive jurisdiction of the Court of Equity. It is true, that it is often said, in general terms, that in cases of fraud, courts of law and equity have concurrent jurisdiction. While that may be conceded as a general proposition, yet it is not universally true. In 2 Pom. Eq. Jur., § 872, that distinguished author classifies the cases in which a Court of Law may take jurisdiction, and those which appropriately belong to a Court of Equity, amongst which latter he places cases for the reformation of a written instrument, so as to make it express the real intention of the parties; and in 1 Pom. Eq. Jur., §§ 171-172 and 188, it is said a case for the reformation of a written instrument is within the exclusive jurisdiction of the Court of Equity. This is obvious, for the reason that a Court of Law has no machinery by which the end desired can be obtained.
It is true, that since the reformed procedure instituted by the Code, a plaintiff may unite in the same complaint equitable and legal causes of action, wheu otherwise permissible, and, therefore, in the same complaint a plaintiff may ask for a reformation of a written contract, as well as for damages sustained by reason of a breach of such contract; yet it is equally true that, in such a case, the equitable cause of action must be tried by the tribunal appropriate to that end, and the legal cause of action by its appropriate tribunal. Adickes v. Lowry, 12 S. C., 97, recognized and followed in numerous other cases. So that it seems to me that the plaintiff could not recover against the defendant any damages for the breach of the contract set out *547in the complaint as the basis of his action, until he had first obtained a decree of the Court of Equity for the reformation of such contract, so as to make it express the real intentions of the parties at the time it was entered into. The fact that the defendant may not have made any request to have the equitable and legal issues tried separately by the tribunal appropriate to each, cannot affect the question, for it is a matter of jurisdiction, and if, as we have seen, the Court of Equity has exclusive jurisdiction of the question of reformation of the terms of the written contract, then any attempt of a Court of Law to render judgment upon such an issue, even by the consent of defendant implied from want of objection, would amount to nothing, because of the lack of jurisdiction.
For the reasons above indicated, without going into any of the other questions presented by this appeal, I think the judgment of the Circuit Court should be reversed, and the case remanded to that court for a new trial.
Judgment affirmed.