Legal Opinion

Nesbitt Auto Co. v. Kirby

Supreme Court of South Carolina

Decided June 28, 1920No. 10436PublishedCited by 1 opinion

Before Shipp, J., Union, May term, 1919. Action by R. H. Nesbitt Auto Co. against J. E. Kirby, doing business under the name of Union Plumbing & Elec.

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Before Shipp, J., Union, May term, 1919. Action by R. H. Nesbitt Auto Co. against J. E. Kirby, doing business under the name of Union Plumbing & Elec. Co. Erom directed judgment for. plaintiff, defendant appeals. cites: Relief demanded in complaint cannot be exceeded zvhen no anszver is made: Code, sec. 336; 18 S. C. 600; 19 S. C. 445; 62 S. C. 506; 88 S. C. 144; 83 S. C. 491. Judgment in claim and delivery might be for either possession or value, if possession is denied, and damages, but not for both: Code, sec. 338. Under complaint in first action, where property was delivered, only…

1Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Fraser.

The plaintiff sold to the defendant an automobile truck part cash and part credit. The credit portion was secured by notes of the defendant and a chattel mortgage of the truck. The defendant paid two of the notes, and then made default in the payments of the other notes. The plaintiff brought an action in claim and delivery, claiming the possession under his mortgage. The defendant surrendered the possession of the truck, which the plaintiff sold to foreclose his mortgage. The truck was bought in by the plaintiff for $75, and resold…

2Cited by1 opinion

  1. Whetsell v. Sovereign Camp, W. O. W.Supreme Court of South Carolina · 1938

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